DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim status
The examiner acknowledges the amendment made to the claims on 02/19/2026.
Claims 1-18 are pending in the application. Claims 1, 6, 8, 10, 11 and 12 are currently amended. Claims 15-18 are newly presented. Rest of claims are previously presented. Claims 1-18 are hereby examined on the merits.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claim 1, 3-5, 7-8, 10-12 and 15-18 are rejected under 35 U.S.C. 103 as being unpatentable over Boyer US Patent No. 3,662,673 (cited in the 1449 form submitted on 06/09/2023, hereinafter referred to as Boyer) in view of Milos CZ33545U1 (hereinafter referred to as Milos), Shachat US Patent No. 4,950,492 (hereinafter referred to as Shachat) and Debon US Patent Application Publication No. 2008/0206421 A1 (hereinafter referred to as Debon).
Regarding claims 1 and 10, Boyer teaches a method for producing an expanded, textured protein product comprising mixing together ingredients comprising proteinaceous material derived from an oleaginous seed material, fat (e.g., vegetable oil) and water, and subjecting the mixture to microwave expanding and setting to form an expanded, substantially water-insoluble, irreversible cross-linked structure, and cooling the resulting product (column 1, line 34-42; 56-62; column 2, line 28 and 70; Example 1 and Example 4). Boyer further teaches that the proteinaceous material contains at least 35 wt% protein, and the example of which is processed soybean, isolated soy protein, soy flour, defatted soy flakes, cottonseed meals, sesame seed meals, peanut meals and the like (column 1, line 37-38; 59-62).
Boyer is silent regarding the proteinaceous material being native edestin protein isolate.
Milos teaches a native edestin protein isolate obtained from extraction of hemp seed (page 3, para. 4-6). Further, Milos includes an embodiment teaching that the edestin protein isolate comprising 95% edestin (page 3, para. 4). Milos teaches that edestin protein can be used for food production, for example, for increasing the protein content in a high protein food (page 3, para 4; page 5, bottom para.)
Both Boyer and Milos are directed to proteinaceous materials that are derived from an oleaginous seed material and contain at least 35 wt% protein. It is found that Boyer contains a method of microwave expanding a plant protein such as soy protein isolate which differs from the claimed method by the substitution of the soy protein isolate with edestin protein isolate. However, the edestin protein isolate and function thereof (e.g., as a protein source in a food as disclosed by Milos) were known in the art; therefore, one of ordinary skill in the art could have substituted native edestin protein isolate as disclosed by Milos for the soy protein isolate in the process of microwave expansion as disclosed by Milos, and the results of the substitution would have been predictable, e.g., the substitution will result in an expanded, textured protein product derived from edestin protein.
Mixing edestin protein with fat and water will necessarily form a protein-fat hydrosol, as evidenced by para. 0077 of the instant specification. A hydrosol is a liquid by its nature.
Where Boyer as modified by Milos teaches subjecting a mixture of edestin protein, vegetable oil and water to microwave heating, a container is inherently taught by the prior art. Alternatively, it would have been obvious to put a food mixture in a container for microwave heating, since such a practice is what people have been doing all the time.
Further, Shachat teaches a method of preparing a microwave expanded (e.g., puffed) food, comprising placing raw food pieces on the bottom of a microwave proof container and heating until the pieces expand into puffed products having volumes several times of the unheated pieces (column 3, line 28-32).
Debon teaches that food grade plastic can be used to make a microwave-safe container for microwave heating of a food (0029).
Both Boyer and Shachat are directed to microwaved expanded food. Both Boyer and Debon are directed to microwave heating of food. Further, where Shachat teaches microwave heating a food material in a microwave-safe (e.g., microwave-proof) container, Debon teaches that food grade plastic can be used to make a microwave safe food container. It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have modified Boyer by placing the mixture of protein, vegetable oil and water in a microwave proof container such as a food grade plastic microwave safe container followed by microwave expanding the mixture with reasonable expectation of success, for the reason that it is known to microwave expanding a food mixture in a container, and food grade plastic can be used to make a microwave safe container.
A container such as the food container used for microwave heating necessarily contains a bottom and at least one side wall.
Further, the examiner takes office notice that the limitation about separating the expanded food product from the container would have been obvious, since it is customary for people to remove a food product from the enclosure or the container upon (microwave) heating.
The limitation about a plurality of gas bubbles or a plurality of voids is inherently taught by the prior art, for the reason that during microwave expansion of a food material, the microwave energy heats the material through the vibrational energy imparted on moisture, and upon heating, moisture generates the superheated gas bubble and voids necessary for expansion.
Further, the limitations about non-uniform web-like protein-fat hydrogel that includes at least one thread having a width of at least 5 mm, at least one sheet, and at least one container sidewall section as recited in claims 1 and 10 are considered met by Boyer in view of Milos, Shachat and Debon, since the cited arts in combination teach the same step of subjecting the edestin protein-fat hydrosol in a container to microwave expansion as the claimed method. See MPEP 2112.01 I, where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). Note that Boyer teaches that the microwave expanded food resulting from soy protein isolate has a non-uniform web-like structure (e.g., a cellular structure, Example 1).
On the limitation that the non-uniform web-like protein-fat hydrogel includes one container sidewall section bound to the at least one side wall: Example 11 of the instant specification and the Remarks filed 02/19/2026 (see the para. that bridges pages 8 and 9) are suggesting that plastic container will lead to the binding of the hydrogel to the container sidewall, thus given that Boyer in view of Milos, Shachat and Debon teaches forming protein-fat hydrogel in a plastic container upon microwave heating, the limitation is met by prior art.
Regarding claims 3 and 15-16, Example 4 of Boyer teaches mixing 100 gram of protein, 50 gram of vegetable fat and 150 ml of water, thus the concentration of protein isolate is 100/(100 + 50 + 150) = ~33%. Further, Boyer teaches that the weight ratio of protein material to the aqueous liquid (e.g., water) can be 1:0.2 to 1:4 (column 2, line 1-3; column 1, line 55-58; claim 1, note that claim 4 has a protein/water ration of 0.67), rendering the protein amounts as recited in claims 15-16 obvious.
Regarding claim 4, Example 1 of Boyer teaches a conventional domestic microwave oven (e.g., a microwave oven that has 8.8 kw, 115-200 v and 2450 mc). On the limitation that the microwave oven is set to a power of 4-7: Boyer teaches that the residence time or power output determines the degree of expansion and final moisture (column 2, line 45-52). Therefore, one of the ordinary skill in the art would have been motivated to manipulate the power and/or the residence time for desired expansion and moisture for the expanded protein product. As such the power level as recited in claim 4 is merely an obvious variant of the prior art. Also note that judging from the claim 4, it is unclear what exact power level is used.
Regarding claim 5, it submitted that a hydrogel meniscus is inherently taught by Boyer in view of Milos, Shachat and Debon, as evidenced by para. 0319 of the instant specification.
Regarding claim 7, where Boyer in view of Milos, Shachat and Debon teaches a microwave proof plastic container, the limitation about contiguous sidewall would have been obvious since that is merely a design choice for a microwave proof container. Further, MPEP 2144.04 IV B states that changes in shape is prima facie obvious, and MPEP 2144.04 I states that aesthetic design change is prima facie obvious.
Regarding claim 8, where Boyer in view of Milos, Shachat and Debon teaches a container holding a mixture for microwave expansion, it would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have manipulated the size (e.g., the space enclosed by the bottom and the sidewall) of the container such that the container has room for desired degree of expansion. Note that Shachat teaches microwave heating until the pieces expand into puffed products having volumes several times of the unheated pieces (column 3, line 28-32).
Regarding claim 11-12, it is noted that claims 11-12 have essentially the same scope as claim 1 combined with claim 4, and a step of allowing a significant expansion of the protein hydrosol. To this end, Boyer in view of Milos, Shachat and Debon teaches a method of preparing an expanded edestin protein food product in connection with claims 1 and 4, the entirety of which is incorporated herein by reference. Further, Boyer teaches that calcium carbonate or sodium carbonate is added to the mixture (column 2, line 20-26), which necessarily allows a significant expansion of the protein-fat hydrosol (see para. 00321 and 0338 of the instant specification, which suggest that the presence of carbonate leads to the significant expansion of the hydrosol).
Regarding claims 17-18, Example 4 of Boyer teaches mixing 100 gram of protein, 50 gram of vegetable fat and 150 ml of water, thus the concentration of protein isolate is 100/(100 + 50 + 150) = ~33%. Further, Boyer teaches that the weight ratio of protein material to the aqueous liquid (e.g., water) can be 1:0.2 to 1:4 (column 2, line 1-3; column 1, line 55-58; claim 1, note that claim 4 has a protein/water ration of 0.67), rendering the protein amounts as recited in claims 17-18 obvious.
Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over Boyer in view of Milos, Shachat and Debon as applied to claim 1 above, and further in view of Niwano JPH02171156 A (hereinafter referred to as Niwano).
Regarding claim 2, Boyer in view of Milos, Shachat and Debon teaches expanding and setting the protein-fat hydrogel but is silent regarding shaping the hydrogel.
Niwano teaches a method of preparing a microwave expanded food comprising subjecting a dough comprising whole fat soybean flour, fermented soybean, a frothing agent and water to microwave heating (abstract). Further, Niwano teaches shaping the dough with a mold such that a desired shape can be formed for the puffed food (page 15, first para.).
Both Boyer and Niwano are directed to microwave expanded food. It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have modified Boyer by shaping the expanded food with a mold such that a desired shape can be formed for the expanded food.
On the timing of shaping the expanded food: one of ordinary skill in the art would have performed the shaping or molding step while the expanded product is still malleable but has some degree of structural integrity. As such, the limitation about shaping the protein-fat hydrogel prior after setting and before substantially cooling the web-like protein-fat hydrogel is obvious. Further, selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results. See In re Burhans, 154 F.2d 690, 69 USPQ 330 (CCPA 1946) (See MPEP 2144.04 IV).
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over Boyer in view of Milos, Shachat and Debon as applied to claim 1 above, and further in view of Kakizawa JP2018099096 A (hereinafter referred to as Kakizawa) and van der Sman, “Critical factors in microwave expansion of starchy snacks”, Journal of Food Engineering, 2017, 211, pages 69-84 (hereinafter referred to as van der Sman).
Regarding claim 6, Boyer in view of Milos, Shachat and Debon as recited above teaches that a hydrogel meniscus is inherently formed in the expanded edestin protein product (see the rejection of claim 5 above), but is silent regarding the hydrogel meniscus ratio. The hydrogel meniscus ratio appears to measure the degree of the collapse of the expanded product, as a result of the rupture of the gas bubble.
Kakizawa teaches that an expanded (e.g., puffed) food is obtained by generation bubble in the dough and swelling the bubble during heating, and the strength of the bubble membrane supporting the bubbles is maintained by protein (0003); therefore, if the amount of protein is reduced, a so-called “falling in the oven” is likely to occur, in which the air bubbles membrane cannot withstand the swelling and the air bubbles are broken and the dough conversely falls (0004).
van der Sman teaches that in a microwave expansion of a food product, a higher energy/power favors a high expansion ratio but beyond an optimal point for the energy/power, the expansion ratio will decrease because of the shrinkage (Abstract; page 73, right hand column, fifth para.).
Boyer, Kakizawa and van de Sman are all directed to expanded food. It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to manipulate the amount of protein in the un-expanded mixture and power output of the microwave to ensure desired expansion ratio and avoidance of fall/collapse of the expanded product. As such, the hydrogel meniscus ratio as recited in the claim is merely an obvious variant of the prior art.
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Boyer in view of Milos, Shachat and Debon as applied to claim 1 above, and further in view of Keefer US Patent No. 4,888,459 (hereinafter referred to as Keefer).
Regarding claim 7, Boyer in view of Milos, Shachat and Debon teaches a container comprising at least sidewall, but is silent regarding that the at least sidewall has at least one contiguous sidewall.
Keefer teaches a microwave safe container comprising contiguous wall portions for modifying the electric field for uniform heating (Abstract).
Both Boyer and Keefer are directed to microwave heating. It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have used container with contiguous wall portions for modifying the electric field for uniform heating.
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Boyer in view of Milos, Shachat and Debon as applied to claim 1 above, and further in view of van der Sman, “Critical factors in microwave expansion of starchy snacks”, Journal of Food Engineering, 2017, 211, pages 69-84 (hereinafter referred to as van der Sman) and Williams US Patent No. 3,989,858 (hereinafter referred to as Williams).
Regarding claim 9, Boyer in view of Milos, Shachat and Debon as recited teaches the voids or the gas bubbles but is silent regarding the size of the voids.
van der Sman teaches that in a microwave expanding of a food product, the expansion is due to the growth of individual steam bubble (Abstract; page 71, left hand column, first para.). Williams teaches that for an expanded food, the expansion ratio affects the texture of the food (column 2, bottom para.).
Boyer, van de Sman and Williams are all directed to expanded food. It would have been obvious to one of ordinary skill in the art to have controlled the size of the gas bubbles such that the expanded food product has suitable expansion ratio for desired texture of the expanded food. Given that the voids are caused by the gas bubbles, the size of the voids as recited in claim 9 is merely an obvious variant of the prior art.
Claims 13-14 are rejected under 35 U.S.C. 103 as being unpatentable over Boyer in view of Milos, Shachat and Debon as applied to claims 11-12 above, and further in view of Zittel US Patent No. 5,632,195 (hereinafter referred to as Zittel).
Regarding claims 13-14, Boyer as recited teaches cooling the expanded protein product but is silent regarding cooling the product with an aqueous liquid.
Zittel teaches cooling a heated food product with a bath of cold water (column 7, line 51-54).
Both Boyer and Zittel are directed to heating and cooling a food item. It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have modified Boyer by cooling the expanded protein product with a bath of cold water with reasonable expectation of success, for the reason that prior art has established that it is suitable to cool a hot food product with a bath of cold water.
Response to Arguments
Applicant's arguments filed 02/19/2026 have been fully considered and the examiner’s response is show below:
The 35 USC 112 rejection of claims 6, 8 and 10-14 are withdrawn in view of the amendment made to the claims.
On the 35 USC 103 rejection, Applicant asserts unexpected result. In particular, applicant asserts on page 7 of the Remarks that the protein-fat hydrosol as claimed has non-uniform fibrated structure upon microwave heating, as compared with closest prior art Boyer.
The argument is considered but found unpersuasive. Applicant has not shown any data or evidence comparing the claimed invention with Boyer thus the arguments are essentially conclusive remarks. See MPEP 716.01(c) II. Attorney arguments cannot take the place of evidence. MPEP 2145 I. Argument does not replace evidence where evidence is necessary. Applicant is encouraged to submit a Declaration to show any new result. On the other hand, Boyer actually teaches that the microwave expanded food resulting from soy protein isolate has a non-uniform fibrillar or web-like structure (e.g., a cellular structure, Example 1).
Applicant argues on page 8 of the Remarks that Boyer fails to teach a protein isolate concentration of 20-31% as recited in the newly introduced claims 15 and 17, and that new claims 16 and 18 recite 17-38% protein isolate which is generally below that 33% as recited in Boyer.
The arguments are considered but found unpersuasive. Applicant appears to have overlooked the general teaching in Boyer that the weight ratio of protein material to the aqueous liquid (e.g., water) can be 1:0.2 to 1:4 (column 2, line 1-3; column 1, line 55-58; claim 1, note that claim 4 has a protein/water ration of 0.67), rendering the protein amounts as recited in claims 15-18 obvious.
Applicant argues on pages 8-9 of the Remarks that Boyer fails to teach the limitation that the hydrosol (it should be hydrogel) is bound to the sidewall of the container, or even a container.
The argument is considered but found 1) piecemeal and 2) moot over the new ground of rejection. Piecemeal because the rejection is not over Boyer alone, rather it is over Boyer in view of Milos, Shachat and Debon in which Shachat is cited to teach a container for microwave expanding. Moot because Debon is cited in the instant office action to teach expanding food in a plastic container, which necessarily results in the binding of the hydrogel to the sidewall of the container Example 11 of the instant specification suggest that plastic container will lead to the binding of the hydrogel to the container sidewall).
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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.
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/CHANGQING LI/Primary Examiner, Art Unit 1791