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 .
The Amendment filed March 31, 3036 has been entered. Claims 1-23, 25, 27-28, 30, 39-42 and 55 are pending. Claims 6 has been amended.
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.
Claims 1-12, 19-23, 25, 27-28, 30, 42 and 55 are rejected under 35 U.S.C. 103 as being unpatentable over Verkuijl et al. (WO 2021/099506 A1; made of record by applicant).
Regarding claim 1, Verkuijl discloses a meat analog composition comprising:
fat in an amount of 5-40% by weight (page 1 last para.), thus overlapping the claimed range of 2-20%,
a non-animal protein in an amount from 10-60% by weight of the dry ingredients (page 1 last para.), thus overlapping the claimed range of 5-30%, and
water in an amount from 10-60% by weight (page 1 last para.), thus overlapping the claimed range of 30-70%.
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)
Verkuijl further teaches that the fat composition comprises at least 40% by weight saturated fatty acids (page 4 last para.), thus overlapping the claimed range of 20-85% by weight;
at least 40% by weight C18:0 (page 4 para. 10), thus overlapping the claimed range of 10-50% by weight;
less than 10% by weight C12:0 (page 4 para. 5), thus overlapping the claimed range of 2-35% by weight;
wherein said percentages of fatty acid residues refers to fatty acids bound as acyl groups in glycerides in the fat composition and being based on the total weight of C8 to C24 fatty acid residues bound as acyl groups present in the fat composition (pages 3-4).
Again, as stated above, 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 2, as stated above, Verkuijl further teaches that the fat composition comprises at least 40% by weight saturated fatty acids (page 4 last para.), thus overlapping the claimed range of 20-70% by weight. 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 3, Verkuijl teaches that the fat composition is essentially free of palm oil, with a content of less than 1% by weight (page 4 para 10), thus falling within the claimed range of less than 10% by weight.
Regarding claim 4, Verkuijl teaches that the fat composition is a non-hydrogenated fat composition (page 1 last para).
Regarding claim 5, Verkuijl teaches that the fat composition comprises at least 40% by weight of palmitic acid (page 4 para 8), while the claimed range requires 20% by weight or less.
However, it would have been obvious to one of ordinary skill in the art to lower the amount of C16 depending on the desired properties of the fat composition.
As stated in MPEP 2144.05: Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "Where 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." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955)
Regarding claim 6, Verkuijl teaches that the fat composition comprises at least 40% by weight C18:0 (page 4 para. 10) and at least 40% by weight of palmitic acid (page 4 para 8), thus leading to a ratio that can be 1:1 and overlaps the claimed ratio.
It further would have been obvious to vary the amount of each fatty acid to result in a fat composition having desired properties.
Regarding claim 7, Verkuijl teaches that the fat composition comprises at least 40% by weight C18:0 (page 4 para. 10) and less than 10% by weight C12:0 (page 4 para. 5), thus leading to a ratio that can be 1:4 and overlaps the claimed ratio.
It further would have been obvious to vary the amount of each fatty acid to result in a fat composition having desired properties.
Regarding claim 8, as stated above, Verkuijl teaches that the fat composition comprises at least 40% by weight C18:0 (page 4 para. 10), thus overlapping the claimed range of 15-45% by weight; and
less than 10% by weight C12:0 (page 4 para. 5), thus overlapping the claimed range of 10-25% by weight.
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 9, Verkuijl further teaches that the fat composition has a SFC N20 of at least 20 as measured using unstabilized fat according to ISO 8292-1 (page 2 line 1), thus overlapping the claimed range. 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 10, Verkuijl teaches that the fat composition comprises an interesterified fat (pages 4-5).
Regarding claims 11-12, with respect to how the interesterified fat was produced, the examiner notes that applicant has presented process limitations in a product claim. As stated in MPEP 2113: Even 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.
Therefore, as Ma teaches an interesterified fat, which is the same as claimed, the method by which the interesterified fat is produced is not given patentable weight.
Furthermroe, the examiner notes that Verkuijl teaches that the interesterification is carried out chemically (Example1).
Regarding claim 19, Verkuijl teaches the fat composition as described above, but fails to specifically teach the fat composition comprising 2-12% by weight of St2M triglycerides. However, Verkuijl teaches the fat composition made from the same ingredients as the instant invention and therefore it would have been obvious for the fat composition of the prior art to have St2M triglycerides. With respect to the amount, with would have been obvious to one of ordinary skill in the art to process the fat sources in a way to results in a desired amount of ST2M triglycerides.
Further, as stated in MPEP 2144.05: Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "Where 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." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955)
Regarding claims 20-22, Verkuijl teaches that the non-animal protein comprises a legume plant protein (page 2).
Regarding claim 23, Verkuijl teaches that the protein component can be in various forms suitable for food applications and therefore it would have been obvious for the protein to be texturized vegetable protein (page 2).
Regarding claims 25 and 27, Verkuijl further teaches that meat analogue comprising a stabilizer blend that can be a vegetable derived protein, a vegetable fiber, and a polysaccharide (page 7 Example 2).
Regarding claim 28, Hsieh teaches that the meat analogue comprises one or more flavoring additives (page 7 Example 2).
Regarding claim 30, Hsieh teaches that the meat analogue further includes hydrocolloids and/or polysaccharides (page 7 Example 2).
Regarding claim 42, Verkuijl render obvious a food product comprising a meat analogue composition according to claim 1 as Verkuijl further teaches that meat analogue may be processed into a variety of food applications (page 5 and 8, Example 3).
Regarding claim 55, Verkuijl teaches a process for manufacturing the meat analogue composition according to claim 1 as Hsieh teaches combining all the ingredients, e.g. water, non-animal protein and fat, and forming the meat analogue into a food product (page 4-5, See Examples).
The examiner notes that the additional components and step c are optional and therefore not required.
With respect to combining the water and protein first and then adding the fat, the examiner notes that any order of processing steps is obvious absent new or unexpected results (See MPEP 2144.04). As all the ingredients are mixed together to form a final product, changing the order of adding the ingredient would not be expected to change the final product and is therefore obvious to select any order of adding the ingredients.
Claims 13-16 and 18 are rejected under 35 U.S.C. 103 as being unpatentable over Verkuijl et al. (WO 2021/099506 A1; made of record by applicant) as applied to claim 1 above, and further in view of Ma et al. (US 2021/0022362 A1; Jan. 28, 2021).
Regarding claim 13, Verkoijl discloses that the fat composition comprises an interesterified fat, but fails to specifically teach that the interesterified fat is a blend comprising one of the claimed fats and one of the claimed oils.
Ma discloses a non-hydrogenated fat composition for used in food products ([0008]). Ma teaches that the performance of the fat composition is improved to result in improved texture and sensory performance in food products.
Ma teaches that the fat composition comprises an interesterified fat blend comprising at least one fat that can be shea butter, shea stearin, shea olein and mixtures thereof, and at least one oil that can be coconut oil, coconut oil stearin, coconut oil olein and mixtures thereof ([0031]).
It would have been obvious to one of ordinary skill in the art to have the interesterified fat of Verkoijl be an interesterified fat blend as taught by Ma depending on the desired properties and texture of the fat composition.
Regarding claim 14, Ma further teaches that the fat composition preferably comprises an interesterified fat blend of shea stearin and coconut oil ([0032]).
Regarding claims 15-16, Ma teaches that the interesterified fat blend comprises shea stearin in an amount from 30-70% by weight and coconut oil in an amount from 30-70% by weight ([0032]), thus falling within the claimed ranges of 20-80% by weight.
As stated above with respect to claim 13, Ma teaches that the fat can be shea butter or shea stearin, therefore it would have been obvious to one of ordinary skill in the art to use shea butter in a similar amount as shea stearin, from 30-70% by weight, as such amount is suitable in the interesterified fat blend with the coconut oil.
Regarding claim 18, Ma teaches that the fat composition comprises 28.1% by weight of CN46 and CN48 triglycerides (Table 1), thus falling within the claimed range.
Claims 17 and 39-41 are rejected under 35 U.S.C. 103 as being unpatentable over Verkuijl et al. (WO 2021/099506 A1; made of record by applicant) as applied to claim 1 and further in view of Ma et al. (US 2021/0022362 A1; Jan. 28, 2021) and Huizinga et al. (US Patent No. 7,998,521 B2; Aug. 16, 2011).
Regarding claim 17, as stated above with respect to claims 13-16, Ma renders obvious the fat composition of Verkuijl comprising an interesterified blend comprising shea stearin in an amount from 30-70% by weight and coconut oil in an amount from 30-70% by weight ([0032]), thus falling within the claimed ranges of 20-80% by weight.
Verkuijl and Ma, however, fail to teach the fat composition further comprising a blend of the interesterified blend in an amount from 20-80% by weight mixed with sunflower oil in an amount of 20-80% by weight.
Huizinga teaches a non-hydrogenated fat composition comprising an interesterified fat blend mixed with a liquid vegetable oil, wherein the liquid oil can be sunflower oil (col 3 lines 30-40; col 4 lines 29-40). Huizinga teaches that the interesterified fat is present in an amount of 20-70% by weight and the liquid oil is present in an amount from 30-80% by weight (col 4 lines 30-35), thus falling with the claimed ranges of the interesterified blend in an amount from 20-80% by weight mixed with sunflower oil in an amount of 20-80% by weight.
Huizinga teaches that the addition of liquid oil with the interesterified hard stock fat results in a margarine type product (col 4 lines 29-45). Therefore, it would have been obvious to add oil to the fat composition of Verkuijl in view of Ma to result in a blend comprising the interesterified fat blend and the liquid oil as taught by Huizinga. Adding oil to the fat composition would yield the predictable result of providing a margarine spread and would have been obvious to do so depending on the desired type of fat product as adding oil results in a more spread-like composition.
It further would have been obvious to use the amounts of each of the interesterified blend and oil as taught by Huizinga in the fat of Verkuijl as such amounts are suitable to yield a margarine type product.
Regarding claim 39, as stated above, Verkuijl in view of Ma teach a fat composition comprising an interesterified blend. Both, however, fail to teach the fat composition further comprising at least one additional fat or oil.
As stated above with respect to claim 17, Huizinga teaches a non-hydrogenated fat composition comprising an interesterified fat blend mixed with a liquid vegetable oil (col 3 lines 30-40; col 4 lines 29-40).
Huizinga teaches that the addition of liquid oil with the interesterified hard stock fat results in a margarine type product (col 4 lines 29-45). Therefore, it would have been obvious to add oil to the fat composition of Verkuijl in view of Ma to result in a blend comprising the interesterified fat blend and the liquid oil as taught by Huizinga. Adding oil to the fat composition would yield the predictable result of providing a margarine spread and would have been obvious to do so depending on the desired type of fat product as adding oil results in a more spread-like composition.
Regarding claims 40-41, Huizinga further teaches that the interesterified fat is present in an amount of 20-70% by weight and the liquid oil is present in an amount from 30-80% by weight (col 4 lines 30-35), thus overlapping with the claimed ranges of the interesterified blend in an amount from 50-80% in claim 40, or 60-80% in claim 41, and the oil in an amount of 20-50% by weight in claim 40, or 20-40% by weight in claim 41. 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)
It further would have been obvious to use the amounts of each of the interesterified blend and oil as taught by Huizinga in the fat of Verkuijl as such amounts are suitable to yield a margarine type product.
Response to Arguments
Applicant’s amendment has overcome the 112(b) rejection over claim 6 from the previous Office Action and therefore it has been withdrawn.
Applicant’s arguments with respect to the 103 rejection were found persuasive. However, upon further review, a new 103 rejection is made over Verkuijl, which teaches a meat analog composition comprising:
fat in an amount of 5-40% by weight (page 1 last para.), thus overlapping the claimed range of 2-20%,
a non-animal protein in an amount from 10-60% by weight of the dry ingredients (page 1 last para.), thus overlapping the claimed range of 5-30%, and
water in an amount from 10-60% by weight (page 1 last para.), thus overlapping the claimed range of 30-70%.
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)
Verkuijl further teaches that the fat composition comprises at least 40% by weight saturated fatty acids (page 4 last para.), thus overlapping the claimed range of 20-85% by weight;
at least 40% by weight C18:0 (page 4 para. 10), thus overlapping the claimed range of 10-50% by weight;
less than 10% by weight C12:0 (page 4 para. 5), thus overlapping the claimed range of 2-35% by weight;
wherein said percentages of fatty acid residues refers to fatty acids bound as acyl groups in glycerides in the fat composition and being based on the total weight of C8 to C24 fatty acid residues bound as acyl groups present in the fat composition (pages 3-4).
For the reasons state above, a 103 rejection is maintained.
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to STEPHANIE A KOHLER whose telephone number is (571)270-1075. The examiner can normally be reached Monday-Friday 8am-5pm.
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/STEPHANIE A KOHLER/Primary Examiner, Art Unit 1791
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