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 claims 39-57 in the reply filed on November 23, 2025 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)).
Claims 58-76 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim.
Claim Objections
Claim 39 is objected to because of the following informalities: “the ratio of the volume of fluid-filled pores…” on line 3 should be preceded by the word “wherein”, such that the limitation would read “wherein the ratio of the volume of fluid-filled pores…”. Appropriate correction is required.
Claim 47 is objected to because of the following informalities: “wherein this product” on line 1 should read “wherein the product”. Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 39-57 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the enablement requirement. The claims contain subject matter which was not described in the specification in such a way as to enable one skilled in the art to which it pertains, or with which it is most nearly connected, to make and/or use the invention.
The breadth of the claims is too broad, reciting “a foamed, resilient, protein-based product with a dry matter fraction of 20-98% by weight, bound water fraction of 2-80% by weight and a partially to fully filled open pore structure” but provides no specific composition that provides the recited properties.
The nature of the invention is a foamed, resilient, protein-based product limited by the properties recited above, but lacks limitations that clearly define the metes and bounds of the invention and does not disclose working examples that provide direction to one of ordinary skill in the art to be able to clearly determine the fundamental nature of the invention.
The amount of direction provided by the inventor is insufficient in order to produce a composition that reliably would have the same properties as those recited in the claims. The specification discloses “a generic concept for the personalization of sustainably produced food systems made from plant protein and plant fibers”. [Pg. 5, Ln 21-22] However, “a generic concept” does not provide sufficient direction to allow one of ordinary skill to make or use the claimed invention.
The lack of existence of working examples provided by the applicant would force one of ordinary skill in the art to perform an undue amount of experimentation in order to produce the instant invention.
The quantity of experimentation needed to make or use the invention based on the content of the disclosure would be undue due to the lack of working examples and the lack of specific composition ingredients and structures.
In light of the factors described above, the disclosure fails to provide sufficient information regarding the subject matter of the claims as to enable on skilled in the art to make and use the claimed invention commensurate in scope with these claims. The specification does not reasonably provide enablement to make and use the invention recited in claims 39-57. See MPEP 2164 and 2161.
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 39-54 and 57 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.
With respect to Claim 39, the claim recites the limitation “the pore-filled fluid is preferably enriched with components which add a sensory and/or nutritional and/or flavor and/or pharmaceutical function” on lines 5-6. It is unclear whether the limitation is optional or required due to the use of the term “preferably”. For the purposes of examination, the limitation will not be considered to be further limiting the claim.
Due to their dependency on claim 39, claims 40-57 are rejected.
With respect to Claim 40, the claim recites the limitation “the volume fraction of filled open pores based on the total volume of all open and closed pores is preferably between 0.2-0.95” on lines 1-2. It is unclear whether the limitation is optional or required due to the use of the term “preferably”. For the purposes of examination, the limitation will not be considered to be further limiting the claim.
With respect to Claim 44, 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 44 recites the broad recitation “wherein the protein product is present in a partially to fully denatured form”, and the claim also recites “preferably has a fibrillar structure, more preferably an oriented fibrillar structure” 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.
With respect to Claim 47, the claim recites “a plant protein-based, foamed meat analog” but does not provide any definition or clarification for the term “plant protein-based”, nor does the specification provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. For the purposes of examination, the term “plant protein-based” will be considered to include any meat analog product comprising a plant-protein.
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 39-57 are rejected under 35 U.S.C. 103 as being unpatentable over Denkel et al. (CA 3130259 A1).
With respect to Claim 39, Denkel et al. teaches a food product [Pg. 5, Ln. 1-5] for use as a meat substitute, [Pg. 5, Ln. 15] wherein the product is characterized in that it comprises fibers that are arranged in a matrix that has channels, pores, or cavities that are completely or partially open to the outside. [Pg. 6, Ln. 8-10] Denkel et al. teaches that the ratio of the volume of the pores to the volume of space occupied by fibers is adjustable in order to optimize organoleptic properties of the material [Pg. 7, Ln. 7-10] and that the product can be composed mainly of biological substances that can include peas, soy, quinoa, spent grains, almonds, cashew, pectin, whey protein isolate, plant-based protein concentrates or isolates, and more. [Pg. 10, Ln. 7-17] Additionally, Denkel et al. envisions particular embodiments of the product that may comprise filing the empty pores with flavorings or vitamins [Pg 14, Ln. 18-20] or a flowable material than can be partially or completely solidified in order to increase the juiciness of the product, [Pg. 17, Ln. 11-18] and as having a preferable dry matter content of between 1-50%. [Pg. 38, Ln. 6]
Denkel et al. makes no explicit teaching of the location of pores on the surface relative to total pores, but does teach that the volume of pores and the distribution of them essentially determines the overall texture of the product. [Pg. 34, Ln. 20-21] One of ordinary skill in the art would understand that pore distribution would be a property of the composition that would be advantageous to optimize in order to determine the most desirable overall texture of the product and Denkel et al. teaches a product wherein the spores can be selectively distributed.
According to MPEP 2144.05 II, “[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation”. The general conditions of the recitation, “[wherein] the ratio of the fluid-filled pores open towards the product surface (OGP) to the total volume of open pores (OP) is set in the range 0.05 -1.00” are met by the teaching of Denkel et al.
Additionally, the composition taught by Denkel et al. wherein the dry matter fraction is 1-50% would comprise 99-50% bound water. These values overlap with the values of dry matter and bound water recited in claim 39. According to MPEP 2144.05 I, “In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists”.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the teaching of Denkel et al. in order to produce a foamed, resilient, protein-based product with a dry matter content between 20-98%, a bound water content between 2-80%, and a partially to fully filled open pore structure, wherein the ratio of the fluid-filled pores open towards the product surface to the total volume of open pores is between 0.05 -1.00, thereby rendering obvious claim 39.
With respect to Claim 40, Denkel et al. teaches the invention recited in claim 39, as described above. Denkel et al. is silent to the exact amount of filled and empty pores, but teaches the pores may be partially or completely filled. [Pg. 17, Ln. 12-13] In the broadest interpretation, this teaching comprises a range of > 0%-100%, a range that overlaps with the range recited in claim 40. According to MPEP 2144.05 I, “In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists”. Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the teaching of Denkel et al. to produce a composition according to claim 39, wherein the volume fraction of filled pores to total volume of all pores is between 0.2-95, thereby rendering claim 40 obvious.
With respect to Claim 41, Denkel et al. teaches the invention recited in claim 39, as described above. Additionally, Denkel et al. teaches that the porosity of the product is between 20-85%. [Pg. 34, Ln.16] Therefore, Denkel et al. renders claim 41 obvious.
With respect to Claims 42-43 and 45-46, Denkel et al. teaches the invention recited in claim 39, as described above. Additionally, Denkel et al. teaches the product may have a lipid content between 0-70%, a fiber content of 0-80%, and a protein content of 0-95%. [Pg. 36, Ln. 12-13] Denkel et al. teaches the product can be composed of peas, soy, quinoa, spent grains, almonds, cashew, pectin, whey protein isolate, plant-based protein concentrates or isolates, and more. [Pg. 10, Ln. 7-17]
One of ordinary skill in the art could envision a composition wherein the protein is between 0-100% plant protein and the values of protein, fiber, and fat overlap with the values recited in claims 42, 45, and 46 respectively. According to MPEP 2144.05 II, “In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists”. Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the teaching of Denkel et al. to produce a composition with 10-95% protein, 0.5-20% plant fiber, and 0.1-15% fat or oil, wherein the protein can be between 0-100% plant protein, thereby rendering claims 42, 43, 45, and 46 obvious.
With respect to Claim 44, Denkel et al. teaches the invention recited in claim 39, as described above. Additionally, Denkel et al. teaches the product is produced by extrusion, wherein the material is arranged into strands. [Pg. 6, Ln. 8-9] This reads on the protein in the product being in a partially to fully denatured form. Therefore, Denkel et al. renders claim 44 obvious.
With respect to Claim 47, Denkel et al. teaches the invention recited in claim 39, as described above. Additionally, Denkel et al. teaches that the product can be used as a meat substitute, [Pg. 5, Ln. 15] and comprises a network of channels, pores, or cavities, [Pg. 6, Ln. 8-10] which reads on a foamed product. Denkel et al. teaches the product can be composed of peas, soy, quinoa, spent grains, almonds, cashew, pectin, whey protein isolate, plant-based protein concentrates or isolates, and more, [Pg. 10, Ln. 7-17] which reads on a plant-protein based product. Denkel et al. also teaches that the product may comprise filing the empty pores with flavorings or vitamins [Pg 14, Ln. 18-20] that is a flowable material, [Pg. 17, Ln. 11] which reads on the pores filled with a fluid which adds a nutritional function.
The recitation of “which is produced using High Moisture Extrusion Cooking (HMEC) technology” amounts to a product by process limitation. According to MPEP 2113, “[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 product taught by Denkel et al. reads on the limitations of a plant protein-based, foamed meat analog, wherein the open pores are filled with a fluid to a set fraction, which adds ab additional nutritional function. Additionally, Denkel et al. teaches the product is produced by extrusion. [Pg. 6, Ln. 8]
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date on the instant invention, to have used the teaching of Dunkel et al. to produce a plant protein-based, foamed meat analog, produced through HMEC, wherein the pores are filled with a fluid to a set fraction, wherein the fluid adds a nutritional function, thereby rendering claim 47 obvious.
With respect to Claim 48, Denkel et al. teaches the invention recited in claim 39, as described above. Additionally, Denkel et al. teaches that the product may have a dry matter content of between 1-50%, [Pg. 38, Ln. 6] which teaches a product with a moisture content of between 99-50%. The product of Denkel et al. reads on a moist, foamed framework matrix with a water content between 40-70%. Therefore, Denkel et al. renders claim 48 obvious.
With respect to Claim 49, Denkel et al. teaches the invention recited in claim 39, as described above. Denkel et al. is silent to the dynamic viscosity and wetting properties of the pore-filling fluid, but teaches that the sensory perception of the product can be determined by modifying the filling and that the filling can have a wide range of flowability. [Pg. 17, Ln. 13-17] The product taught by Denkel et al. is substantially identical to the product taught in the instant invention, and is produced by substantially the same process. According to MPEP 2112.01, “Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established”. A substantially identical fluid would also possess the same properties as the fluid recited in claim 49. Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention to have used the teaching of Denkel et al. to produce the composition according to claim 49, wherein the fluid is set to a zero dynamic viscosity of ≤ 1 Pas and wetting properties with respect to the material forming the pore walls, thereby rendering claim 49 obvious.
With respect to Claims 50-51, Denkel et al. teaches the invention recited in claim 39, as described above. Additionally, Denkel et al. particular embodiments of the product that may comprise a flowable material than can be partially or completely solidified in order to increase the juiciness of the product. [Pg. 17, Ln. 11-18] Therefore, Denkel et al. renders claims 50-51 obvious.
With respect to Claim 52, Denkel et al. teaches the invention recited in claim 39, as described above. Additionally, Denkel et al. particular embodiments of the product that may comprise filing the empty pores with flavorings. [Pg 14, Ln. 18-20] Therefore, Denkel et al. renders claim 52 obvious.
With respect to Claims 53-54, Denkel et al. teaches the invention recited in claim 39, as described above. Additionally, Denkel et al. particular embodiments of the product that may comprise filing the empty pores with vitamins. [Pg 14, Ln. 18-20] Vitamins are known to be preventative for the treatment of diseases, specifically diseases caused by vitamin deficiencies. Therefore, Denkel et al. renders claims 53 and 54 obvious.
With respect to Claim 57, Denkel et al. teaches the invention recited in claim 39, as described above. Additionally, Denkel et al. particular embodiments of the product that may comprise a flowable material than can be partially or completely solidified in order to increase the juiciness of the product. [Pg. 17, Ln. 11-18] The teachings of the fluids of Denkel et al. are considered to meet the claimed “sauces”, thereby rendering claim 57 obvious.
Claims 55-56 are rejected under 35 U.S.C. 103 as being unpatentable over Denkel et al. (CA 3130259 A1) in view of Tapfer et al. (US 20090263555 A1).
With respect to Claims 55-56, Denkel et al. teaches the invention recited in claim 39, as described above. Denkel et al. is silent to the pore-filling fluid being a multiphase emulsion or suspension, wherein the different phases include or encapsulate sensory or nutritive substances.
Tapfer et al. teaches a stable foam product [0001] comprising a matrix designed to entrap liquid within. [0020] The foam is also taught to comprise a nutritive component, such as vitamins and minerals, [0085] a probiotic, [0084] a medicinal component, [0088] and more. Additionally, the additive may be in any form capable of delivering the nutritive component, such as a liquid, a solid, or a liquid encapsulated in a solid or semi-solid coating in order to suspended the additive within the matrix. [0094] The additive may also be stabilized with emulsion components in order to create a continuous phase. [0094]
Denkel et al. and Tapfer et al. exist within the same field of endeavor, in that they teach foam compositions, especially those that are designed to entrap liquid within the matrix. Where Denkel et al. teaches a porous matrix that can be filled with a fluid, Tapfer et al. teaches additives comprising encapsulated nutritive substances that can be suspended in a liquid. One of ordinary skill in the art would be motivated to use the teaching of Tapfer et al. in order to impart health benefits [0081] to the composition taught by Denkel et al.
A composition comprising the flowable material of Denkel et al. and the encapsulated nutritive additive of Tapfer et al. reads on the limitation of a multiphase system with suspension character, wherein the individual phases comprise a nutritive or sensory substance. Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the teachings of Denkel et al. in view of Tapfer et al. to produce a product according to claim 39, wherein the pore-filling fluid is a multi-phase system with suspension character wherein the different phases include or encapsulate sensory or nutritive substances, thereby rendering claims 55 and 56 obvious.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JOSEPH CULLEN MERCHLINSKY whose telephone number is (571)272-2260. The examiner can normally be reached Monday - Friday 9:00am - 5:00pm.
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/J.C.M./Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791