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 .
Drawings
The drawings are objected to because the notation for Figures 3-16 appears to have an inadvertent marking as a right column. Please note sheets 2-8 of the Drawings in US PGPUB 2023/0389569. These figures also contain descriptions that are difficult or impossible to read. Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
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 2 and 3 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 1 was amended to require the plant-based protein comprises a texturized plant-based protein. Claim 2 then states that the plant-based protein is selected from isolated soy, isolated pea, texturized soy, texturized pea, wheat, canola, potato, rapeseed and combinations thereof. Claim 2 is indefinite because the list of plant-based proteins is not limited to texturized plant-based proteins and is not clear as to whether the claim is solely to a combination of one of the texturized soy or pea proteins with another protein source. In other words, it is not clear if a textured protein is required since the scope of the claim encompasses plant-based proteins that are not textured.
Claim 3 also recites that the plant-based protein may be isolated or texturized soy or pea protein or mixtures thereof, but as noted above, claim 1 requires the presence of a textured plant-based protein whereas claim 3 allows for only an isolated soy or pea protein to be present.
Furthermore, it is unclear if “textured” as recited in claim 1 is the same as “texturized” recited in claims 2 and 3. As best understood, the terms appear to be interchangeable based upon their usage in the instant specification. If this is the case, it is suggested to select one term to use consistently throughout the claims.
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 1-10 are rejected under 35 U.S.C. 103 as being unpatentable over US 2006/0019016 (Torcatis) in view of WO 2020/236632 (Wolf) OR EP 0345886 (Bennett) and further in view of WO 2020/152689 (Ben-Shitrit) OR EP 1254604 (Murphy).
Regarding claims 1, 4, 5, 6, 7, Torcatis teaches a powdered composition for preparing a heat-stable food product that is at least partially gelled. The composition comprises 5-50wt% sodium alginate, 0-50wt% calcium salt, and vegetable proteins. For instance, several examples have more than 10% sodium alginate, more than 7wt% vegetable protein and calcium sulfate in amounts greater than 10 wt%. Torcatis does not teach encapsulating the calcium salt.
Wolf teaches a simulated shellfish analogue comprising sodium alginate, plant protein isolate and encapsulated calcium. Wolf teaches that the calcium salt is encapsulated such that the calcium cannot react with the alginate until the calcium-alginate solution reaches a particular temperature and the calcium is released from the encapsulating material thus allowing control of when the reaction occurs [0062].
Bennett teaches alginate gels useful in a variety of food products where encapsulated calcium salts are used with the alginate salt and the encapsulate obviates the need for calcium sequestrant (page 3).
It would have been obvious to one of ordinary skill in the art to substitute encapsulated calcium salt for the calcium salt of Torcatis with a reasonable expectation of successfully forming the gelled product with better control (Wolf) and without the need for calcium sequestrants (Bennett).
Regarding the use of textured plant-based protein, note that Torcatis discloses that in certain cases, the composition will comprise at least 50% of water-retaining texturing agent constituted by a vegetable protein which is suggestive of a texturing aspect attributed to the vegetable protein [0074]. Furthermore, Ben-Shitrit and Murphy disclose the use of textured plant proteins in formation of a meat substitute.
Ben-Shitrit discloses a meat-analogue comprising protein and hydrocolloids (alginate) to form a gel (Murphy discloses a meat substitute comprising plant proteins a binding agent (such as alginate) and water. Ben-Shitrit discloses that the protein component is used to imitate the muscle portion of meat and is designed and constructed to have the texture of muscle. The protein component may be in the form of a protein isolate, protein concentrate or texturized protein such as texturized vegetable (plant) protein (page 7). Ben-Shitrit discloses that in some examples the protein competent is comprised of protein molecules bound to water that are texturized to create a fibrous structure. In other examples, the texturized protein component comprises protein molecules that are substantially aligned in a certain direction as to create a substantially aligned fibrous structure. In some examples, the texturized protein comprises or is textured vegetable proteins (TVP) including, for example, textured soy, textured pea, textured wheat gluten, and combinations of same (page 8).
Murphy discloses that using textured vegetable protein, preferably pea, greatly improved the "bite", juiciness and succulence of the end-product and depending on the end-product the portion of the textured protein may vary (page 2). Murphy also discloses that the textured protein may comprise 5-20wt% of the product (composition).
It would have been obvious to one of ordinary skill to use textured plant protein in the composition of Torcatis better create a fibrous structure in the case of Ben-Shitri or to gain the benefit of improved “bite”, juiciness and succulence as disclosed by Murphy with a reasonable expectation of success based upon the disclosure of the references pointing to the reasons for using textured plant protein.
Regarding claims 2 and 3, Torcatis teaches vegetable proteins such as soy and pea and that they can be in the form of protein isolates [0042].
Regarding claim 8, Bennett explains that approximately 30-90wt% of the encapsulated material is calcium salt (page 3), thus the amount of calcium provided by corresponding amounts of encapsulated calcium salt is expected to fall within the amount claimed.
The limitation of claim 9 is a result of using the claimed composition in a particular manner. Based upon the similarities in the materials and amounts of Torcatis as modified by Wolf/Bennett, one of ordinary skill would reasonably expect the composition to perform in a similar manner.
Regarding claim 10, Torcatis teaches a powder composition (abstract).
Response to Arguments
Applicant’s arguments with respect to claim(s) 1 and the newly added limitation of textured plant-based protein have been considered but are moot in light of the newly relied upon art cited above. No arguments were made regarding Torcatis, Wolf and Bennett.
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.
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.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Tong Guo can be reached at 571-272-3066. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
JENNIFER C. MCNEIL
Primary Examiner
Art Unit 1723
/Jennifer McNeil/Primary Examiner, Art Unit 1723
Prosecution Insights