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 without traverse of Group I, Claims 1-19 and 64-70 in the reply filed on January 5, 2026 is acknowledged.
Claims 20-63 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on January 5, 2026.
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.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claims 1-19 and 64-70 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 1, the recitation “a water/water containing liquid” renders the claim indefinite. It is not clear what ingredients would be considered a water/water containing liquid. How is a water/water containing liquid different than water?
Regarding claim 1, a broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claim 1 recites the broad recitation lipid, and the claim also recites “preferably is fat, oil or margarine which is the narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
Regarding claim 1, the recitation “at least one plant based – excluding what-proteinaceous ingredient with the proteinaceous portion having at least 6.1% by weight of the binder ingredient renders the claim indefinite. First, it is not clear if the proteinaceous portion is the same as the plant based proteinaceous ingredient or some specific component of the proteinaceous ingredient, e.g., the protein content of the proteinaceous ingredient. Moreover, it is not clear if the proteinaceous portion has at least 6.1% by weight of the binder or if the binder comprises 6.1% to 15% of the proteinaceous portion.
Regarding claim 1, the recitation “the recitation “the binder ingredient undergoes further gelation under non-melting conditions for the proteins” renders the claim indefinite because it is not clear what conditions would melt the protein. Does applicant mean under conditions that do not denature or unfold the protein?
Regarding claim 2, the recitation “wherein between the mixing and shaping steps the mixture is kneaded” renders the claim indefinite. Claim 1 does not require an active step of mixing; rather, claim requires “preparing a mixture.” There is no antecedent basis for the step of mixing in claim 1.
Regarding claim 4, the recitation “wherein: the plant-based proteinaceous binder ingredient comprises a protein colloid, protein extract, protein isolate, protein concentrate or a mixture of at least two of these” renders the claim indefinite because it is not clear if the binder comprises protein in addition to the plant-based proteinaceous ingredient of claim 1 (ii, b) or if Applicant intends to claim wherein the plant based proteinaceous ingredient is a protein colloid, protein extract, protein isolate, protein concentrate or a mixture of at least two of these.
Regarding claim 5, the recitation “wherein the plant-based proteinaceous binder ingredient comprise protein fractions having isoelectric points between 4 and 5.” renders the claim indefinite because it is not if the binder comprises protein fractions in addition to the plant-based proteinaceous ingredient of claim 1 (ii, b) or if Applicant intends to claim wherein the plant based proteinaceous ingredient comprises protein fractions having isoelectric points between 4 and 5.
Regarding claim 6, the recitation “wherein the plant-based proteinaceous binder ingredient comprise protein fractions having water solubility being affected by pH.” renders the claim indefinite because it is not if the binder comprises protein fractions in addition to the plant-based proteinaceous ingredient of claim 1 (ii, b) or if Applicant intends to claim wherein the plant based proteinaceous ingredient comprises protein fractions having water solubility being affected by pH.
Regarding claim 7, the recitation “wherein the plant-based proteinaceous binder ingredient comprise protein fractions having gel forming properties after being denatured and acidified to pH between 3.5 and 6.0 or to 0.5-1.4 in the pH scale above the isoelectric point of the at least one plant-based proteinaceous ingredient.” renders the claim indefinite. First, it is not if the binder comprises protein fractions in addition to the plant-based proteinaceous ingredient of claim 1 (ii, b) or if Applicant intends to claim wherein the plant based proteinaceous ingredient comprises protein fractions having gel forming properties after being denatured and acidified to Ph between 3.5 and 6.0. Second, it is not clear at what pH the protein fractions must be adjusted to. Does the pH just have to be adjusted to a pH of above the isoelectric point of the protein fraction?
Regarding claim 12, the recitation “wherein in the mixing step, also a protein crosslinking/binding enzyme is included, the mixing is carried out below 40°C” renders the claim indefinite. First, there is no antecedent basis for the ‘mixing step” in claim 1. Claim 1 only requires a step of preparing a mixture. Does Applicant intend to claim “preparing a mixture of i) textured vegetable proteins . . ., ii) a plant-based proteinaceous binder ingredient . . .; and (iii) a protein crosslinking/binding enzyme wherein the step of preparing is carried out below 40°C?
Regarding claim 13, the recitation “wherein the time between the mixing step and the shaping step is less than 4 h” renders the claim indefinite because there is no antecedent basis for the ‘mixing step” in claim 1. Claim 1 only requires a step of preparing a mixture.
Regarding claim 14, the recitation “wherein in the method, between the mixing step and the shaping step, the temperature of the mixture is kept below 40°C” renders the claim indefinite because there is no antecedent basis for the ‘mixing step” in claim 1. Claim 1 only requires a step of preparing a mixture.
Regarding claim 15, the recitation “wherein the shaped mixture is subjected to an incubation step in which the shaped product is . . .” renders the claim indefinite because it is not clear what the difference is between the shaped mixture and the shaped product. Art the terms used interchangeably?
Regarding claim 64, the recitation “The method of claim 1, further comprising one or more of the following: oilseed oil, rapeseed oil, field mustard oil, olive oil, coconut fat, or cocoa fat” renders the claim indefinite. It is not clear how the method comprises, for example olive oil. Does Applicant intend to claim wherein the mixture further comprises one or more of oilseed oil, rapeseed oil, field mustard oil, olive oil, coconut fat, or cocoa fat?
Regarding claims 67, the recitation “The method of claim 1, further comprising one or more of the following: potato, onion, tomato, herbs, spices, salt, breadcrumbs or starches” renders the claim indefinite. It is not clear how the method comprises, for example onion. Does Applicant intend to claim wherein the mixture further comprises one or more of potato, onion, tomato, herbs, spices, salt, breadcrumbs or starches?
Claims 3, 8-11, 16-19, 65, 66 and 68-70 are rejected because they are dependent from a rejected base claim.
Claim 18 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
Claim 18 is directed to a formed meat-replacement food product according to claim 17. However, claim 17 is directed to a formed meat-replacement food product.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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 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.
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.
Conclusion
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.
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ELIZABETH A. GWARTNEY
Primary Examiner
Art Unit 1759
/ELIZABETH GWARTNEY/ Primary Examiner, Art Unit 1759