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 .
Election/Restrictions
Applicant’s election of Group I claims 49-65 in the reply filed on 2/6/2026 is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)).
Claim Objections
Claims 62-63 are objected to because of the following informalities:
Regarding claim 62, in line 3 amend “jackfruit or a jackfruit derivative” to instead recite “the jackfruit or jackfruit derivative” for consistency with claim 49.
Regarding claim 63, in line 2 amend “jackfruit or a jackfruit derivative” to instead recite “the jackfruit or jackfruit derivative” for consistency with claim 49.
In line 4, delete “c. a protein additive in an amount of about 1 wt.% to about 25 wt.%” since the limitation is already required by claim 1 and therefore redundant, and amend “a.” through “d.”, respectively.
Appropriate correction is required.
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 49-65 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.
Regarding claim 49, the preamble “meat-like food product, or a composition used to prepare the meat-like food product” renders the claim indefinite since two inventions are stated (i.e., “meat-like food product” and “composition used to prepare the meat-like food product), and it is unclear which invention the claim is directed to. It is unclear if the two inventions are intended to encompass the same scope, and unclear if the limitations recited in the claim body refer to the “food product”, the “composition”, or both. The rejection can be overcome by amending the claim to recite only one invention. Additionally, Examiner notes the deleted alternative can be added as a new, dependent claim. For example, claim 49 can be amended to recite only “a composition”, and dependent claim 69 can be added which is directed to “a food product prepared from the composition of claim 49”.
The limitation “meat-like” (both recitations) renders the claim indefinite since it is unclear what feature(s) and value(s) are encompassed by the limitation. While the specification recites the limitation refers to “a food product having a mouth-feel and texture reminiscent of meat…familiar with eating plant-based meat alternative food products” (paragraph 13), the disclosed features are relative and the specification does not provide a standard for ascertaining the requisite degree. One of ordinary skill understands that different types of natural meat exhibit different mouthfeels and textures (e.g., between animal types, muscle groups, and treatment before consumption). Therefore, the limitation “meat-like” is ambiguous as to what is actually encompassed and one of ordinary skill would not be reasonably appraised of the scope of the claimed invention.
Regarding claim 51, in line 5 the term “jackfruit” renders the claim indefinite since claim 1 already requires “jackfruit or a jackfruit derivative”, and it is unclear how the “jackfruit” of claim 51 is distinguished form that of claim 49.
Regarding claim 53, in lines 2-3 the limitation “a flour, tapioca flour, cassava flour, wheat flour, corn flour, rye flour, banana flour” renders the claim indefinite since it is unclear how “a flour” is distinguished from the subsequently recited flour alternatives.
Regarding claim 60, the limitation “a meat-like texture” renders the claim indefinite for the same reasons stated for claim 49. It is unclear what feature(s) and value(s) thereof are encompassed by the limitation.
Regarding claim 61, in line 3 the limitation “the meat-like food product, or a composition used to prepare the meat-like food product” renders the claim indefinite for the same reasons stated for claim 49 above.
Regarding claim 62, the limitation “c. a protein additive in an amount of about 1 wt.% to about 25 wt.%” renders the claim indefinite since claim 49 requires said feature, but claim 62 indicates the feature is optional by reciting “at least three of”. It is unclear if the limitation in question is actually required by the claimed invention.
Regarding claims 50-65, the preamble “meat-like food product or composition” renders the claims indefinite for the same reasons stated for claim 49 above.
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 49-52, 54-58, 60, and 62-64 are rejected under 35 U.S.C. 103 as being unpatentable over Jackfruit NPL.
Regarding claim 49, in view of the rejection under 35 USC 112(b) above, the claims are hereon interpreted to be directed to “a meat-like food product”.
Jackfruit NPL teaches a “meat-like food product” i.e., vegan buffalo jackfruit burgers that “have the texture of real chicken burgers” (page 1), comprising jackfruit i.e., “2 20 oz. cans young jackfruit (drained and shredded)” (page 2), and additives i.e., “1 medium red onion”, “2 cloves garlic”, “2/3 cup garbanzo bean flour”, “1/4 tsp onion powder”, “1/4 tsp garlic powder”, and “1/4 tsp black pepper” (page 2). The additives above are construed to be “protein additives” since they necessarily include protein. Additionally, the flour adds protein and acts as a binder, the amount of additive can be adjusted i.e., “feel free to use extra garlic if you please”, and other toppings can be added (page 1 “what you will need”).
Jackfruit NPL does not teach the jackfruit in an amount of at least 10 wt.% and the protein additive in an amount of about 1-25 wt.%.
However, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use the claimed values since the prior art recognizes using jackfruit as the base for a “meat-like food product”, the product including protein additives, since the amount and type of additive can be adjusted, since the evidence of record does not indicate criticality or unexpected results associated with the claimed ranges, and since the claimed values would have been used during the course of routine experimentation and optimization due to factors such as desired flavor, texture/mouthfeel, consistency, and nutritional profile.
Applicant has not shown sufficient evidence that the claimed ingredients and amounts produces new, unexpected, and useful function, see In re Levin, 84 U.S.P.Q. 232, 234 (C.C.P.A. 1950). Id. at 7. The following passage is quoted from Levin.
“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 White, 39 F.2d 974, 17 C.C.P.A., Patents, 956; In re Mason et al., 156 F.2d 189, 33 C.C.P.A., Patents, 1144.”
Regarding claim 50, Jackfruit NPL does not specify 25-95 wt.% jackfruit. However, the claimed values would have been obvious for the same reasons stated for claim 49.
Regarding claim 51, the protein additive comprises the additives stated above, construed to be types of “vegetable protein”, as well as “jackfruit”.
Regarding claim 52, the food product comprises 2/3 cup chickpea flour, construed to be a type of binding agent, but does not specify 0.5-5 wt.%.
However, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use the claimed values for the same reasons stated for claim 49 above, particularly desired mouthfeel/texture and consistency.
Regarding claims 54-57, Jackfruit NPL does not teach the weight ratio of the jackfruit to the water (claim 54), the weight ratio of the jackfruit to the protein additive (claim 55), the weight ratio of the water to the protein additive (claim 56), a binding agent, and the weight ratio of the jackfruit to the binding agent (claim 57) as claimed.
However, the reference teaches forming the burgers using ingredients that one of ordinary skill would expect to add water i.e., the onion, garlic, and Frank’s Red Hot, as well as the moisture associated with the jackfruit. Further, the product includes flour as a binding agent and the content of “protein additive” can be varied as stated for claim 49.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use the claimed values for the same reasons stated for claim 49, particularly since adjusting moisture and binder content is known in the art to control mouthfeel/texture and consistency.
Regarding claim 58, Jackfruit NPL teaches coating the product with oil (page 2 “can you grill these burgers?”) and cooking in oil (page 2 “instructions” step 2), which would have necessarily incorporated some oil into the product.
Jack fruit NPL does not teach the weight ratio of jackfruit to oil as claimed.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use the claimed values for the same reasons stated for claim 49, particularly since the claimed values would have been used during the course of routine experimentation and optimization due to factors such as cooking method, desired flavor, mouthfeel/texture, and nutritional profile.
Regarding claim 60, the burger of Jackfruit NPL is construed to having a “meat-like texture” as stated for claim 49.
Regarding claims 62-63, Jackfruit NPL teaches burgers comprising jackfruit, water, protein additive, binding agent, and oil as stated for claims 49-52 and 54-58 above. The claimed ranges are rendered obvious as stated for the respective claims.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use the claimed values for the same reasons stated for claims 49-50, 52, 54-56 and 58.
Regarding claim 64, Jackfruit NPL does not explicitly teach the claimed weight ratios and respective ranges.
However, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use the claimed values for the same reasons stated for claims 49-50, 52, and 54-58.
Claims 53, 59, 61 and 65 are rejected under 35 U.S.C. 103 as being unpatentable over Jackfruit NPL as applied to claims 49 and 52 above, and in view of Ajami et al. (US 2017/0105438 A1).
Regarding claim 53, the claim recites alternatives. For the sake of examination, the alternative “wheat flour” is chosen.
Jackfruit NPL does not teach the binding agent comprises wheat flour.
Ajami et al. teaches a meat-like food product (abstract) comprising at least 0.05 wt% carbohydrate including wheat flour (paragraph 108).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the product of Jackfruit NPL to use wheat flour since the prior art recognizes wheat flour as suitable for use in meat-like food products, since wheat flour is a readily available and cheap option for flour, since there is no evidence of criticality or unexpected results associated with the claimed feature, and to using a binding flour based on desired mouthfeel/texture, consistency, flavor, and nutritional profile.
Regarding claim 59, Jackfruit NPL does not teach the claimed ranges for total protein, carbohydrate, fat, dietary fiber, and cholesterol.
Ajami et al. teaches the meat-like food product can have 10-25 wt% protein, 5-40 wt% lipid, 0.5-10 wt% carbohydrate, and 1-5 wt% edible fiber (paragraph 109), as well as no cholesterol (paragraph 100). Edible fiber includes dietary fiber (paragraph 108), which can serve as a type of extender (paragraph 250).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the product of Jackfruit NPL to use the claimed amounts of total protein, carbohydrate, fat, dietary fiber, and cholesterol since the prior art recognizes such components and values for meat-like food products, to provide an extender to reduce manufacturing cost, for the same reasons stated for claim 49, since the evidence of record does not indicate criticality or unexpected results associated with the claimed ranges, and since the claimed values would have been used during the course of routine experimentation and optimization due to factors such as desired flavor, texture/mouthfeel, consistency, and nutritional profile.
Regarding claim 61, Jackfruit NPL teaches a binding agent and water as stated for claims 49 and 54-57.
The combination applied to claim 59 teaches 1-5 wt% dietary fiber. The same combination is applied to claim 61 and would have been obvious for the same reasons.
Regarding claim 65, the combination applied to claim 59 renders obvious the claimed values for total protein, carbohydrate, fat, and dietary fiber as stated above. The same combination is applied to claim 65 and would have been obvious for the same reasons.
Regarding the saturated fat, Ajami et al. teaches less than about 7% saturated fat (paragraph 107).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the product of Jackfruit NPL to use the claimed amount of saturated fat for the same reasons stated for claims 49 and 59, particularly based on desired flavor, aroma, mouthfeel/texture, and nutritional profile.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to BRYAN KIM whose telephone number is (571)270-0338. The examiner can normally be reached 9:30-6.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Erik Kashnikow can be reached at (571)-270-3475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/BRYAN KIM/Examiner, Art Unit 1792
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