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 .
Status of the Application
Receipt of the Response and Amendment after Non-Final Office Action filed October 10, 2025 is acknowledged.
Applicant has overcome the following by virtue of amendment of the specification and claims: (1) the objections to the drawings have been withdrawn; (2) the 112(b) rejections of claims 11 and 16 have been withdrawn.
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Withdrawn claims: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, 15
Newly canceled claims:
16
Amended claims:
7-11, 13, 17, 19
New claims:
20-21
Claims currently under consideration:
7-13, 17-21
Currently rejected claims:
7-13, 17-21
Allowed claims:
None
Claim Rejections - 35 USC § 102
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 21 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by 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).
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).
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 0.987, 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 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, this is a necessary property of the composition as claimed. Evidence to support that this is a necessary property is provided by the instant specification. The instant specification discloses that untreated red beet control 1-1 had an a* before heating of 19.5 and an a* after heating of 16.2, which equates to a decrease of 16.9%, which falls within the claimed range of “at least 5% lower”. Therefore, the composition of Bonner-Heine 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 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 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.
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]) 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]) 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.
Claims 19 and 20 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]).
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).
Response to Arguments
Drawings: Applicant has overcome the objections to the drawings based on amendments to the Drawings. Accordingly, the objections have been withdrawn.
Claim Rejections - 35 U.S.C. §112(b): Applicant has overcome the 35 U.S.C. § 112(b) rejections of claims 11 and 16 based on amendments to the claims and/or cancelation. Accordingly, the 35 U.S.C. § 112(b) rejections have been withdrawn.
Claim Rejections – 35 U.S.C. §102 of claims 7-12, 16, and 19 over Bonner-Heine evidenced by Esatbeyoglu: Applicant’s arguments filed October 10, 2025 have been fully considered but they are not persuasive.
Applicant argued that Bonner-Heine does not teach a decreased a* value after heating the pigment for 90 seconds at 130°C, and that Bonner-Heine teaches that the red beet alone did not achieve the desired cooked appearance because the inside of the product remained too pink (Remarks, p. 6, ¶ 3- p. ¶ 3).
This argument has been considered. However, claim 7 merely recites that the pigment composition has an a* after cooking that is at least 5% lower than the a* before cooking. As described above, a composition comprising unmodified beet resulted in a 16.9% lower a* value after heating, which is well within the claimed range. Although Bonner-Heine does say that beet alone did not result in the desired brown color, Bonner-Heine does say that the red beet provides a red hue, and that the final product had a pink hue ([0096]). Thus, it logically follows that there was a decrease in red color upon cooking the beet product of Bonner-Heine because pink is known to be a different hue than red.
Applicant further argued that the beet extract of Bonner-Heine does not inherently comprise de-glycosylated betalains and that Bonner-Heine only achieves browning with the additional of different compositions (Remarks, p. 8, ¶ 4-5).
This argument has been considered. However, as described above, 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). Therefore, the beet composition of Bonner-Heine does comprise de-glycosylated betalain. Furthermore, although Bonner-Heine does say that beet alone did not result in the desired brown color, Bonner-Heine does say that the red beet provides a red hue, and that the final product had a pink hue ([0096]). Thus, it logically follows that there was a decrease in red color upon cooking the beet product of Bonner-Heine because pink is known to be a different hue than red.
Applicant argued that Bonner-Heine does not inherently have a ratio of absorbance at 540 to a ratio of absorbance at 535nm greater than 0.987 because the beet extract of Bonner-Heine is not obtained by enzymatic de-glycosylation or chemical modification. Applicant further argued that Esatbeyoglu does not provide amounts of betanidin or spectral data (Remarks, p. 8, ¶ 6- p. p. 10, ¶ 2).
This argument has been considered. However, as stated above, 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”. Thus, the beet extract of Bonner-Heine that has not been treated with enzyme (i.e., unmodified) would necessarily have the claimed ratio of absorbance at 540 to a ratio of absorbance at 535 nm. In response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., the amount of de-glycosylated betalain) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993).
Claim Rejections – 35 U.S.C. §103 of claim 13 over Bonner-Heine evidenced by Esatbeyoglu and claims 17 and 18 over Bonner-Heine evidenced by Esatbeyoglu in view of Czyzowska: Applicant’s arguments filed October 10, 2025 have been fully considered but they are not persuasive.
Applicant argued that for the reasons stated for claim 7, Bonner-Heine does not teach all limitation of claim 13, 17, and 18.
Applicant's arguments as related to claim 7 were determined to be unpersuasive as detailed previously herein. Examiner further maintains that the dependent claims are properly rejected in light of the cited combinations of prior art as described in the claim rejections.
The rejections of claims 7-13, 17-21 have been maintained herein.
Conclusion
THIS ACTION IS MADE FINAL. 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 Amanda S Hawkins whose telephone number is (703)756-1530. The examiner can normally be reached Generally available M-Th 8:00a-5:00p, F 8:00-2:00[.
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, Emily Le can be reached at (571) 272-0903. 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.
/A.S.H./Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793