DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
The Amendment filed July 21, 2026 has been entered. Claims 1-19 and 64-70 are pending examination. Claims 20-63 were previously withdrawn.
The rejection of claim 18 under 35 U.S.C. 112(d) has been withdrawn in light of Applicants remarks filed July 21, 2026.
Claim Objections
Claim 1 is objected to because of the following informalities: Claim 1 at point ii) a comma should be added after the term “ingredient”. Claim 1 at point b, the recitation “at least one plant based-excluding wheat-proteinaceous ingredient” should read “at least one plant based proteinaceous ingredient excluding wheat-based proteinaceous ingredient”. Appropriate correction is required.
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.
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, 2, 4-11, 17-19, 65-68 and 70 are rejected under 35 U.S.C. 103 as being unpatentable over Fernandez et al. (WO 2020/089444-cited on IDS filed June 16, 2023) as evidenced by Schneider et al. (“Enhancement of pea protein solubility and thermal stability for acidic beverage applications via endogenous Maillard-induced glycation and chromatography purification”, Current Research in Food Science, 6, (2023), pp. 1-11).
Regarding claims 1, 4, 8, 10, 17-19, 65 and 66, Fernandez et al. disclose a method of making vegan burgers comprising: (a) preparing a mixture of hydrated textured soy protein pieces (i.e., chunks), methylcellulose, salt, flavor and color powder; (b) adding fat dispersed emulsion gel flakes (i.e., binder) to the mixture to obtain a fat containing mixture; and molding the fat containing mixture into the form of patties. Fernandez et al. disclose cooking (i.e., heating) the vegan patties.
While Fernandez et al. disclose texturized soy protein, the reference is silent with respect to how it is made. Given the claims are directed to a method of making a formed meat replacement food product and not a method of making an ingredient in the food product, e.g., texturized vegetable protein, the patentability of the claimed process is not dependent on how the texturized vegetable protein is made (If the ingredient is the same as or obvious from the product of the prior art, the claim is unpatentable every thought the prior art product was made by a different process -MPEP §2113 I). Moreover, given Fernandez et al. disclose texturized soy protein (i.e., vegetable protein), inherently the protein would exhibit a porous, sponge-like structure.
Fernandez et al. disclose the fat dispersed emulsion gel flakes (i.e., binder) are made by: (a) mixing potato fiber, pea protein isolate, calcium phosphate and salt together to form a dry mixture; (b) adding, under high shear, water to the dry mixture; adding, under low shear, high oleic sunflower oil to the water containing mixture to form an emulsion; (c) heating the emulsion to 85°C while mixing under high shear; cooling the heated emulsion to between 10°-25°C to form an emulsion gel matrix; (d) breaking the emulsion gel up in a mixer using a cutting blade to obtain smaller gel particles; (e) dispersing the gel particles in lipids and hardening; and (f) cutting the hardened and dispersed get particles into flakes.
While Fernandez et al. disclose an emulsion gel that has been broken up into smaller gel particles (i.e., disturbed), the reference is silent with respect disturbing the gel emulsion before it is set. Given the claims are directed to a method of making a formed meat replacement food product and not a method of making an ingredient in the food product, e.g., a proteinaceous binder, the patentability of the claimed process is not dependent on how the binder is made (If the ingredient is the same as or obvious from the product of the prior art, the claim is unpatentable every thought the prior art product was made by a different process -MPEP §2113 I).
Fernandez et al. disclose the fat dispersed emulsion gel flakes comprise about 2 % by weight of pea protein (i.e. plant based proteinaceous ingredient- see wherein the fat dispersed emulsion gel flakes comprise about 49% of a gel particle comprising 4% by weight protein or about 70% of a gel particle comprising 3% by weight protein.(p. 9/Table 1, p. 10/Table 2). Fernandez et al. does not disclose a content of a proteinaceous ingredient greater than 6.1% by weight of the fat dispersed emulsion gel flakes. However, it would have been obvious to one of ordinary skill in the art to have adjusted, in routine processing the amount of protein in the emulsion gel flakes, to obtain an emulsion gel with desired protein content and texture.
Regarding claim 2, Fernandez et al. disclose all of the claim limitations as set forth above. Fernandez et al. disclose the ingredients of the vegan patty were mixed homogeneously (i.e., kneaded -p. 10/L13-15).
Regarding claims 5 and 6, Fernandez et al. disclose all of the claim limitations a set forth above. Fernandez et al. disclose vegan burgers comprising pea protein isolate. As evidenced by Schneider et al. pea protein is known to have an isoelectric point of between a pH of 4 to 5 (p. 1/Introduction).
Regarding claim 7, Fernandez et al. disclose all of the claim limitations a set forth above. Given Fernandez et al. disclose pea protein isolate, inherently the protein would exhibit the claimed gel forming properties.
Regarding claims 9 and 70, Fernandez et al. disclose all of the claim limitations a set forth above. Given Fernandez et al. disclose a plant-based proteinaceous ingredient that is a pulse, i.e., pea protein, the limitations of claims 9 and 70 are satisfied.
Regarding claim 11, Fernandez et al. disclose all of the claim limitations as set forth above. Fernandez et al. disclose adjusting the pH of the emulsion used to make the fat dispersed emulsion gel (i.e., binder) to a pH in the range of 4 to 6. In the case where the claimed ranges overlap or lie inside ranges disclosed by the prior art a prima facie case of obviousness exists (MPEP §2144.05 I).
Regarding claim 64, Fernandez et al. disclose all of the claim limitations as set forth above. Fernandez et al. disclose the fat dispersed emulsion gel flakes comprise sunflower oil (i.e., oilseed oil) and a dispersing lipid wherein the lipid can be shea, cocoa, coconut, cottonseed, moringa and algae types (p. 7/L3-15).
Regarding claim 67 and 68, Fernandez et al. disclose all of the claim limitations a set forth above. Fernandez et al. disclose the wherein the vegan patties comprise spices, herbs, dried vegetable, fruit, flavoring salt and sugars (claim 10). While Fernandez et al. is silent with respect to the moisture content of the spices, herbs, flavoring salt and sugar, it would have been obvious to one of ordinary skill in the art to have used the ingredients in any form, including dried, and arrived at the present invention with a reasonable expectation of success. One of ordinary skill in the art would have been motivated to use dry ingredients in a processing plant because they would have superior storage stability when compared to high moisture ingredients.
Claims 3, 12-16 and 69 are rejected under 35 U.S.C. 103 as being unpatentable over Fernandez et al. (WO 2020/089444-cited on IDS filed June 16, 2023) as applied to claim 1, and further in view of Bishop et al. (WO 97/40701).
Regarding claims 3, 12 and 69, Fernandez et al. disclose all of the claim limitations as set forth above. Fernandez et al. is silent with respect to an added crosslinking/binding enzyme.
Bishop et al. teach adding transglutaminase (i.e., crosslinking enzyme) to gel forming proteins to obtain cross-linked protein gels with superior strength and thermal stability (Abstract, p. 3/L15-35). Bishop et al. teach adding transglutaminase to a composition of gel-forming protein and incubating the composition at a temperature in the range of 3° to 33°C to form a cross-linked gel (p. 3/L15-35, p. 4/L13-16).
Fernandez et al. and Bishop et al. are combinable because they are concerned with the same field of endeavor, namely processes that gel protein. It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the present application to have added transglutaminase in the process of making fat dispersed emulsion gels to form a cross-linked gel that is stronger and more stable at high temperature.
Regarding claim 13, modified Fernandez et al. disclose all of the claim limitations as set forth above. Given Fernandez et al. does not disclose a holding time between mixing the ingredients and shaping the mixture into patties, it necessarily follows the time between the two steps would be less than 4 hours.
Regarding claim 14, modified Fernandez et al. disclose all of the claim limitations as set forth above. While Fernandez et al. is silent with respect to temperature between mixing and shaping, it necessarily follows the mixture would have been maintained at ambient temperature (i.e., approximately 20°-22°C).
Regarding claim 15, modified Fernandez et al. disclose all of the claim limitations as set forth above. Fernandez et al. disclose the shaped patties are refrigerated (i.e., temperature of about 1° to 4°C) over night (i.e., at least 12 hours)(p. 10/L13-20).
Regarding claim 16, modified Fernandez et al. disclose all of the claim limitations as set forth above. Given Fernandez et al. disclose incubating at refrigeration temperatures (i.e., about 1° to 4°C), the limitations of claim 16 are satisfied.
Response to Arguments
Applicant's arguments filed July 21, 2026 have been fully considered but they are not persuasive.
Applicants submit claims 1, 2, 4-11, 17-19, 65-68 and 70 are patentable over Fernandez, as evidenced by Schneider, because neither reference teaches or suggest at least a plant-based proteinaceous binder ingredient that “is prepared by disrupting coagulation of the emulsion to obtain the disturbed-coagulum before the coagulation is completed” as required by claim 1.
Fernandez et al. disclose the fat dispersed emulsion gel flakes (i.e., binder) are made by: (a) mixing potato fiber, pea protein isolate, calcium phosphate and salt together to form a dry mixture; (b) adding, under high shear, water to the dry mixture; adding, under low shear, high oleic sunflower oil to the water containing mixture to form an emulsion; (c) heating the emulsion to 85°C while mixing under high shear; cooling the heated emulsion to between 10°-25°C to form an emulsion gel matrix; (d) breaking the emulsion gel up in a mixer using a cutting blade to obtain smaller gel particles; (e) dispersing the gel particles in lipids and hardening; and (f) cutting the hardened and dispersed get particles into flakes.
While Fernandez et al. disclose an emulsion gel that has been broken up into smaller gel particles (i.e., disturbed), the reference is silent with respect disturbing the gel emulsion before it is set. Given the claims are directed to a method of making a formed meat replacement food product and not a method of making an ingredient in the food product, e.g., a proteinaceous binder, the patentability of the claimed process is not dependent on how the binder is made (If the ingredient is the same as or obvious from the product of the prior art, the claim is unpatentable every thought the prior art product was made by a different process -MPEP §2113 I). In this case, there is no evidence on the record demonstrating that a proteinaceous binder made by the claimed process would exhibit unexpected or superior properties versus the binder of Fernandez et al. when used to make formed meat-replacement food products.
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 ELIZABETH A GWARTNEY whose telephone number is (571)270-3874. The examiner can normally be reached M-F: 9 a.m. - 5 p.m. EST.
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, Curtis Mayes can be reached at 571-272-1234. 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.
ELIZABETH A. GWARTNEY
Primary Examiner
Art Unit 1759
/ELIZABETH GWARTNEY/Primary Examiner, Art Unit 1759
