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 .
Status of the Claims
Receipt of Remarks/Amendments filed on 05/18/2026 is acknowledged. Claims 1-44 are pending. Claims 1-36 are withdrawn pursuant to 37 C.F.R. 1.142(b) as being drawn to non-elected subject matter. The claims corresponding to the elected subject matter are Claims 37-44, and are herein acted on the merits.
Rejection(s) not reiterated from the previous Office Action are hereby withdrawn. The following rejections are either reiterated or newly applied. They constitute the complete set of rejections presently being applied to the instant application.
Modified Rejection As Necessitated by the Amendment Filed 05/18/2026
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 37-44, are rejected under 35 U.S.C. 103 as being unpatentable over Liepa (Of record).
Liepa discloses a method of treating meat-like protein material to improve its texture, wherein the meat analogs are prepared from vegetable proteins and serve as nutritional, lower-cost, lower-calorie, high-protein substitute for natural meat (p. 1, L. Col., lines 10-20). Liepa relates that duplication of the actual eating quality of meat is achieved with parallel meat-like fibres be bound together to give the appearance and texture of meat, and wherein the fibres being easily separated (p. 1, L. Col., lines 35-47).
Regarding Claim 37, Liepa teaches a process for forming a meat-like material comprising an aggregate of substantially parallel protein fibres and a binder (p. 2, L. Col., lines 6-9). Liepa expressly teaches an of an aggregate slab consisting of parallel protein strands embedded in binder (p. 6, Example II). It is contemplated that the is co-mingled, but separate and distinct from the substantially parallel protein fibers, reading on the claimed feature of the binder interspersed in spaces between and around at least some of the separated fibres. (p. 2, lines 120 -127). Liepa teaches that its invention results in a fibrous structure of the meat analogue comprising inter-fiber spaces within the analogue structure, which reads on the feature of “partially separated” fibers (p. 4, lines 104-114). The slab is cooked in a cooker-conveyor and has a meatlike, fibrous texture, and flavor resembling cooked beef muscle (p. 6, Example II). Liepa teaches adding flavor to the fiber mixture, reading on the marinade, and also teaches setting the set aggregates in a flavor solution wherein it will exhibit a greatly increased facility for absorbing the flavor solution (p. 2, lines 40-57; p. 6, Example II).
While Liepa does not expressly recite that the binder is interspersed in spaces between and around at least some of the separated fibres, Liepa teaches that the step of passing the aggregate containing the binder through the rollers increases the interfiber spaces resulting in improved texture, mouth feel, dehydration and rehydration characteristics. As such, when the aggregate is passed through the roller, because the aggregate is not yet dried, the binder in the aggregate would be able to move to the spaces between especially because Liepa teaches that the step of passing through the rollers increases the interfiber spaces. There is nothing that prevents the binder from filling the interfiber spaces.
Further, Liepa welcomes the addition of other components following the step of passing between the pair of rollers, but prior to the step of drying, e.g. by placing or spraying the set aggregate with a flavor solution wherein it will exhibit a greatly increased facility for absorbing the flavor solution (p. 2, lines 40-48).
Regarding Claim 38, Liepa teaches an aggregate slab, approximately 0.75 inch thick and has a width equal to the width of the creped protein sheet, and cut into chunks resembling cooked beef, which would necessarily have 2 major surfaces and side surfaces (p. 6, Example II, lines 79-107).
Regarding Claim 39 and 41, Liepa teaches binding layers of analogues, wherein a layer of fibers is placed in the bottom of the box; then a layer of edible binder is poured over the fibers; a layer of fibers is next placed over the mixture and so on, alternating fibers and binder material (p. 7, lines 62-77). As such, Liepa teaches further analogue, i.e. second fibrous muscle tissue analogue, bound to the fibrous muscle tissue analogue.
Regarding Claim 40 and 44, Liepa describes fats useful in its invention to comprise inter alia vegetable fats and oils including synthetically prepared shortenings, and exemplifies use of soybean oil in its composition (p. 3, lines 77-114; p. 7, lines 49-60).
Regarding Claims 42-43, Liepa teaches binding layers of analogues, but does not expressly teach that the second fibrous muscle tissue analogue are substantially parallel or non-parallel to the fibres of the fibrous muscle tissue analogue. However, Liepa teaches layering the fibers and binders in a box of approximately 2½ inches wide, 4 inches long, and 2 inches deep, and filling the box (p. 3, lines 77-114; p. 7, lines 49-60).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to alternate the layers either in parallel or non-parallel conformation or both in a manner that would fill the box to exclude space as much as possible per the exemplified teaching of Liepa. In essence, there is a finite number of possibilities for the conformation, i.e. parallel, perpendicular, or offset. As such, one skilled in the art would try any of the conformation as a person with ordinary skill has good reason to pursue known options within his or her technical grasp. See MPEP 2143 Section E.
Furthermore, according to MPEP § 2144.04, a rejection based on design choice can arise when the Examiner asserts that the claimed feature represents an arbitrary selection between alternatives that perform the same function in substantially the same way. Per MPEP § 2144.04, a design choice rejection hinges on the principle that “[a]n obviousness rejection based on a design choice is appropriate where the applicant has not shown that the particular design provides any unexpected results.” The Examiner may argue that the claimed feature or configuration is an obvious variant of prior art because it does not yield a functional or technical benefit beyond what was already known.
Response to Remarks:
The crux of Applicant’s argument is centered around Liepa not teaching the amendment, i.e. specifying that the binder is interspersed "in spaces" between "and around" at least some of the "separated" fibres. Applicant argues that the claimed invention is produced by extrusion, followed by compression of the fibrous muscle tissue analog by passing through a roller or a press, which causes partial separation of the fibers, and forms voids or spaces between and around the fibers, then a binder such as fat analogue is applied in the spaces between. On the other hand, Liepa applies the binder prior to passing between the rollers, not after the extrusion, and does not fill the void. Applicant also argues that one would not want to refill the pores with the binder as Leipa wants these pores.
The Examiner has weighed the argument, but was not persuaded. The examined claims are drawn to a meat analogue, not method of making the meat analogue. Applicant lists Liepa’s process to include the steps of:(a) forming an aggregate of substantially parallel protein fibres and a binder; (b) setting the aggregate, (c) passing the set aggregate of step (b) between a pair of rollers…; ( d) drying said aggregate. As such, when the aggregate is passed through the roller in Liepa, because the aggregate is not yet dried, the binder in the aggregate would be able to move to the spaces between especially because Liepa teaches that the step of passing through the rollers increases the interfiber spaces. There is nothing that prevents the binder from filling the interfiber spaces. As noted above, Liepa states ‘…the binder will generally be an ingredient co-mingled with, but separate and distinct from, the substantially parallel protein fibers…”. Therefore, the process of Liepa would create the same structure as the instantly claimed structure, i.e. the voids are filled with the binder. In order to be persuasive, Applicant needs to compare Liepa’s meat analogue with the instantly claimed meat analogue, and show that the voids are not filled with the binder in the final structure of Liepa.
Furthermore, Regarding the order of steps, the instant situation is amenable to the type of analysis set forth in Ex parte Rubin, 128 USPQ 440 (Bd. App. 1959) (Prior art reference disclosing a process of making a laminated sheet wherein a base sheet is first coated with a metallic film and thereafter impregnated with a thermosetting material was held to render prima facie obvious claims directed to a process of making a laminated sheet by reversing the order of the prior art process steps.). See also In re Burhans, 154 F.2d 690, 69 USPQ 330 (CCPA 1946) (selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results); In re Gibson, 39 F.2d 975, 5 USPQ 230 (CCPA 1930) (Selection of any order of mixing ingredients is prima facie obvious). Thus the claimed variation of steps would have been obvious to a skilled artisan to improve absorption of the binder, if needed. Unless Applicant demonstrates the criticality of the order of addition and that the prior art is not the same product as the instant application, changes in sequence of adding ingredients has been rendered to be prima facie obvious Note MPEP § 2144.04 [R-1] In re Gibson, 39 F.2d 975, 5 USPQ 230 (CCPA 1930) (Selection of any order of mixing ingredients is prima facie obvious).
Lastly, Liepa welcomes the addition of other components following the step of passing between the pair of rollers, which means that one skilled in the art would be motivated to add whatever component is needed, i.e. more binder or fat analog-containing flavor solutions.
Regarding the argument that one would not want to refill the pores with the binder as Leipa wants these pores, Liepa expressly recites that its aggregates rehydrates readily in water even in the presence of fatty or starchy materials, and its binder mixtures comprises fatty materials such as liquid shortening, and tallow (See binders in tables in Examples I and II). Furthermore, the instant claim recites a binder interspersed in spaces between and around at least some of the separated fibres. Similarly, there does not need to be an expectation that all the pores in the structure of Liepa will be filled.
Conclusion
No claims are allowed.
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Harris et al. (US 2019/0008749 A1).
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.
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/J.Y.S./Examiner, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792
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