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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on July 9, 2026 has been entered.
Claim Status
The status of the claims upon entry of the present amendments stands as follows:
Pending claims:
7-13, 17-21
Withdrawn claims:
None
Previously canceled claims:
1-6, 14-16
Newly canceled claims:
None
Amended claims:
1
New claims:
None
Claims currently under consideration:
7-13, 17-21
Currently rejected claims:
7-13, 17-21
Allowed claims:
None
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 7-12, and 19-21 are rejected under 35 U.S.C. 103 as being unpatentable over Bonner-Heine (US 2020/0315209 A1)(IDS Reference filed 04/13/2023) as evidenced by Esatbeyoglu (Esatbeyoglu, Tuba, et al. “Betanin – A food colorant with biological activity”, Molecular Nutrition and Food Research, Vol. 9, Issue 1, p. 36-47, published January 2015 [accessed online February 28, 2025])(Cited in Restriction Requirement) in view of Koltermann (US 2012/0135475 A1).
Regarding claim 7, Bonner-Heine teaches a meat substitute comprising plant-based protein (Abstract) and a colorant that comprises a beet extract composition ([0036]), which inherently comprises de-glycosylated betalains. Evidence to support that beets naturally comprise a de-glycosylated betalain is provided by Esatbeyoglu. Esatbeyoglu teaches that betanidin occurs in red beet (p. 37, col. 2, ¶ 1) and that betanidin does not contain glucose (p. 37, Fig. 2C).
Bonner-Heine does not teach that the a* value before heating and a* value after heating the pigment composition for 90 seconds at 130°C, wherein after heating the a* value is at least 5% lower than the a* value before heating.
However, in the same field of endeavor, Koltermann teaches treating a beet biomass to obtain a storage stable product (Abstract) where the method comprises treating the biomass with beta-glucosidase ([0009]).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the beet extract pigment of Bonner-Heine with the addition of beta-glucosidase treatment as taught by Koltermann. One of ordinary skill would have been motivated to make this modification because Koltermann teaches that the treatment of the biomass leads to a storage stable product (Abstract).
Although the cited prior art does not teach wherein the ratio of absorbance at 540 nm to absorbance at 535 nm of the pigment composition is greater than 0.987, this is inherent to the pigment composition of Bonner-Heine. Evidence to support that the beet extract of Bonner-Heine would have a ratio of absorbance at 540 nm to absorbance at 535 nm of the pigment composition is greater than 0.987 is provided by the instant specification. The instant specification states that the ratio of absorbance for unmodified beet juice is about 0.987 ([0030]), which falls within the claimed range of “greater than 0.987”.
Furthermore, although the cited prior art does not teach that the a* value before heating and a* value after heating the pigment composition for 90 seconds at 130°C, wherein after heating the a* value is at least 5% lower than the a* value before heating, this is an inherent property of the composition of Bonner-Heine in view of Koltermann. Evidence to support that this is an inherent property is provided by the instant specification. The instant specification discloses that red beet treated with glucosidase had an a* before heating of 16.9 and an a* after heating of 7.8, which equates to a decrease of 53.8%, which falls within the claimed range of “at least 25% lower”. Therefore, the composition of Bonner-Heine modified by Koltermann would have the same properties of the claimed invention.
Regarding claim 8, Bonner-Heine teaches all elements of claim 7 as described above. Furthermore, the beet extract of Bonner-Heine would inherently comprise de-glycosylated betanin. Evidence to support that beets naturally comprise a de-glycosylated betanin is provided by Esatbeyoglu. Esatbeyoglu teaches that betanidin occurs in red beet (p. 37, col. 2, ¶ 1) and that betanidin has the same structure as betanin but does not contain glucose (p. 37, Fig. 2C and Fig. 3, Betanin-type).
Claims 9 and 10 are product-by-process claims. MPEP §2113 states “[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process." In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985). “The structure implied by the process steps should be considered when assessing the patentability of product-by-process claims over the prior art, especially where the product can only be defined by the process steps by which the product is made, or where the manufacturing process steps would be expected to impart distinctive structural characteristics to the final product.”
Regarding claim 9, the structure imparted by the process of claim 9 is a de-glycosylated betalain.
Bonner-Heine teaches all elements of claim 7 as described above. Bonner-Heine also teaches a colorant that comprises a beet extract composition ([0036]), which inherently comprises de-glycosylated betalains.
Regarding claim 10, the structure imparted by the process of claim 10 is a de-glycosylated betanin.
Bonner-Heine teaches all elements of claim 7 as described above. Bonner-Heine also teaches a colorant that comprises a beet extract composition ([0036]), which inherently comprises de-glycosylated betanin as described above.
Regarding claim 11, Bonner-Heine teaches all elements of claim 7 as described above. Bonner-Heine also teaches that the colorant in the protein product achieves a brown color post cooking and is red prior to cooking when raw ([0077]).
Regarding claim 12, Bonner-Heine teaches all elements of claim 7 as described above. Bonner-Heine also teaches wherein the plant-based protein is from pea, soybean, and wheat ([0043]).
Regarding claim 19, Bonner-Heine teaches all elements of claim 7 as described above.
Although Bonner-Heine does not teach wherein the ratio of absorbance at 540 nm to absorbance at 535 nm of the pigment composition is greater than 0.998, this is inherent to the pigment composition of Bonner-Heine. Evidence to support that the beet extract of Bonner-Heine would have a ratio of absorbance at 540 nm to absorbance at 535 nm of the pigment composition is greater than 0.998 is provided by the instant specification. The instant specification states that the ratio of absorbance for unmodified beet juice is less than 1 ([0031]), which overlaps with the claimed range of “greater than 0.998”.
Regarding claim 20, Bonner-Heine teaches all elements of claim 7 as described above.
Although Bonner-Heine does not teach the ratio of absorbance at 540 nm to absorbance at 535 nm of the pigment composition is greater than 1.008, the composition of Bonner-Heine necessarily has a ratio of absorbance at 540 nm to absorbance at 535 nm of 1.000 or less, which lies close to the claimed range of “greater than 1.008”. Evidence to support that the beet extract of Bonner-Heine would have a ratio of absorbance at 540 nm to absorbance at 535 nm of the pigment composition is greater than 0.998 is provided by the instant specification. The instant specification states that the ratio of absorbance for unmodified beet juice is less than 1 ([0031]).
With respect to the close range, MPEP §2144.05 states a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985).
Regarding claim 21, Bonner-Heine teaches all elements of claim 7 as described above.
Although Bonner-Heine does not teach wherein the red color of the composition is decreased when heated to a temperature of at least 80°C for 90 seconds, this is a necessary property of the product as claimed. Evidence to support that the red color of the composition is decreased when heated to a temperature of at least 80°C for 90 seconds is provided by the instant specification. The instant specification discloses that the red color of the composition is decreased when heated to a temperature of at least 80°C for 90 seconds.
Claim 13 is rejected under 35 U.S.C. 103 as being unpatentable over Bonner-Heine (US 2020/0315209 A1)(IDS Reference filed 04/13/2023) as evidenced by Esatbeyoglu (Esatbeyoglu, Tuba, et al. “Betanin – A food colorant with biological activity”, Molecular Nutrition and Food Research, Vol. 9, Issue 1, p. 36-47, published January 2015 [accessed online February 28, 2025]) in view of Koltermann (US 2012/0135475 A1) as applied to claim 7 above, and further in view of Huessy (US Patent No. 3,851,072).
Regarding claim 13, Bonner-Heine teaches all elements of claim 7 as described above.
Bonner-Heine does not teach wherein the amount of pigment composition in the meat substitute is 0.2 to 0.8% by weight.
However, in the same field of endeavor of meat-like foods, Huessy teaches a formulation for edible food cubes (Abstract) comprising 0.59% beet powder (col. 3, Example 1, Table).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to consult Huessy to determine the amount of beet pigment to include in a plant protein food. One would be motivated to make this modification because Huessy teaches that beet powder is used in part to provide an imitation ham flavoring to a meat substitute (col. 4, lines 35-37).
Claims 17 and 18 are rejected under 35 U.S.C. 103 as being unpatentable over Bonner-Heine (US 2020/0315209 A1)(IDS Reference filed 04/13/2023) as evidenced by Esatbeyoglu (Esatbeyoglu, Tuba, et al. “Betanin – A food colorant with biological activity”, Molecular Nutrition and Food Research, Vol. 9, Issue 1, p. 36-47, published January 2015 [accessed online February 28, 2025]) in view of Koltermann (US 2012/0135475 A1) as applied to claim 7 above, and further in view of Czyzowska (Czyzowska, Agata, et al. “Bioactive Compounds and Microbial Quality of Stored Fermented Red Beetroots and Red Beetroot Juice”, Polish Journal of Food Nutrition, Vol. 70, No. 1, p. 35-44, published online February 12, 2020 [accessed online June 4, 2025]).
Regarding claims 17 and 18, Bonner-Heine teaches all elements of claim 7 as described above.
Bonner-Heine does not teach wherein the pigment composition comprises at least 50% of one or more de-glycosylated betanains (claim 17) or de-glycosylated betanin (claim 18) on a dry weight basis.
However, in the same field of endeavor of beet pigments, Czyzowska teaches that betanidin (i.e., de-glycosylated betanin, which is a de-glycosylated betanain) was the major compound in grated beetroot pigments with a content above 50% of the total content of pigments (p. 38, col. 2, ¶ 2).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the meat substitute of Bonner-Heine with the use of the beetroot pigment with a high content of betanidin as taught by Czyzowska. One of ordinary skill in the art would have been motivated to make this modification because Czyzowska teaches that the content and composition of pigments is important for product color (p. 38, col. 1, ¶ 5), that betalains give beets a red-purple color (p. 36, col. 1, ¶ 4), and that betanidin is one of the basic betalains (p. 41, col. 1, ¶ 1). Therefore, one of ordinary skill would recognize that including betanidin in the amount taught by Czyzowska in the meat substitute of Bonner-Heine would produce a redder color to simulate raw meat.
Response to Arguments
Claim Rejections – 35 U.S.C. §102 of claims 7-12 and 21 over Bonner-Heine: Applicant’s arguments filed June 17, 2026 and July 9, 2026 have been fully considered but they are not persuasive.
Applicant argued that Bonner-Heine does not disclose an a* reduction of at least 25% under the claimed conditions (Remarks, p. 5).
Applicant' s arguments have been fully considered and are persuasive to the extent that the claims as presently amended would not be anticipated/obvious in view of Bonner-Heine evidenced by Esatbeyoglu. However, upon further consideration, a new ground(s) of rejection is made in view of Bonner-Heine and Koltermann evidenced by Esatbeyoglu.
Claim Rejections – 35 U.S.C. §103 of claim 13 over Bonner-Heine and Huessy; claims 17 and 18 over Bonner-Heine and Czyzowska; and claims 19 and 20 over Bonner-Heine: Applicant’s arguments filed June 17, 2026 and July 9, 2026 have been fully considered but they are not persuasive.
Applicant argued that Huessy and Czyzowska do not teach an a* reduction of at least 25% under the claimed conditions (Remarks, p. 6, 8- p. 7, ¶ 2).
This argument has been considered. However, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). Examiner maintains that Huessy and Czyzowska are both adequate for all that is relied on in the present claim rejections, and the combination of references is adequate to deem the present claims obvious.
The rejections of claims 7-13, 17-21 have been maintained herein.
Conclusion
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/A.S.H./Examiner, Art Unit 1793
/Michele L Jacobson/Primary Examiner, Art Unit 1793
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