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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 24 August 2026 has been entered.
Claim status
Claims 1 and 17 are pending in the current application. Claims 2-16 are cancelled.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1 and 17 are rejected under 35 U.S.C. 103 as being unpatentable over Hao (CN 109123602 A) in view of Herz et al. (herein referred to as Herz, WO 2021009075 A1) in view of Espin et al. (herein referred to as Espin, WO 2019057896 A1)
With regard to Claim 1, Hao teaches a step of causing a polysaccharide ([0012], sugar beet pectin) and multicopper oxidase ([0045], laccase) to act on a plant protein ([0011], soy protein isolate, Example 1 to obtain a food product ([0002]). Hao teaches the polysaccharide is sugar beet pectin ([0012]). Per applicants’ specification paragraph [0026], “Beta vulgaris ssp. vulgaris var. Altissima (a beet also called sugar beet)”. Therefore, Hao teaches that the pectin is derived from Beta vulgaris ssp. vulgaris var. Altissima. Further, the crosslinked plant protein would inherently be contained in the food product because it is utilized to obtain the food product.
With regard to the sugar beet pectin ([0012]). Hao teaches adding 1.5 parts by weight of polysaccharide (i.e., sugar beet pectin) to the protein solution ([0016]). Hao teaches the composite thermal gel include 7-11 parts by weight of protein, 1.5 parts by weight of polysaccharide, 100 parts by weight of water, and a catalyst ([0009]). Thus, Hao reads such that the textured plant protein material swollen with water would be 107-111 parts by weight (this value includes the water and the protein) of the thermal gel. As a result, the pectin is used in an amount of 1.5 parts by weight per 107-111 parts by weight of the textured plant protein material. See MPEP 2144.05(I) a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985). Further, Hao teaches the protein-polysaccharide forms a double network gel which effectively improves the mechanical properties and water holding capacity of the gel and expands its application range ([0027]). Therefore, it would have been obvious to one with ordinary skill in the art to modify the amount of polysaccharide (i.e., sugar beet pectin) to achieve the desired mechanical properties and water holding capacity for the desired application range. See MPEP 2144.05(II)(A) 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. "[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." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
With regard to the laccase, Hao teaches the catalyst is laccase added at a rate of 100 nkat of laccase per 1 g of substrate ([0013]). One with ordinary skill in the art would recognize that 1 U is equivalent to approximately 16.67 nkat. Therefore, 100 nkat is approximately 6 U (5.998). 6 U is less than the 15 to 25 U claimed by applicant. However, Hao further teaches that laccase has a wide substrate range, high activity, and long life. It is a widely used environmentally friendly enzyme ([0045]). Therefore, it would have been obvious to one with ordinary skill in the art to modify the amount of laccase used in relation to the desired substate and activity. See MPEP 2144.05(II)(A) 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. "[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." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Hao teaches There is an increasing number of applications of polysaccharide hydrogels in tissue engineering, cell fixation, drug encapsulation and transportation, food texture improvement, and flavor release ([0005]).
Hao is silent to the food specifically being a meat-like processed food and to the plant protein being contained in the textured plant protein material. However, the examiner would like to note that applicants’ specification paragraph [0015] states “The form of the plant protein used in the present invention is not particularly limited. For example, the plant protein may be in a powder form or in a textured form” and paragraph [0014] states “textured plant protein material, proteins of pulses and proteins of cereals are preferable, soybean protein, pea protein, and wheat protein are more preferable, and soybean protein and pea protein are further preferable.” Thus, one with ordinary skill in the art would deduce the soy protein isolate taught by Hao reads on the limitations of the claim.
Regardless, Herz teaches meat-like processed food that has been made by crosslinking plant protein in the presence of a polysaccharide (abstract, Claims 14-17). Herz teaches the plant protein is contained in the textured plant protein (page 6, “plant protein extrudate”).
Therefore, It would have been obvious to one with ordinary skill in the art before the effective filing date to utilize the method taught by Hao to produce a meat-like processed food because Hao teaches the method can be utilized to produce a food product and Herz imparts reasoning for obviousness because the teaching shows crosslinked plant proteins in the presence of a polysaccharide have been successfully used in meat-liked process food at the time of filing, which means it was within the general skill of one with ordinary skill in the art to utilize the polysaccharide hydrogels taught by Hao for a meat-like process food, because it would be obvious to one with ordinary skill in the art to do such a thing on the basis of its suitability for a similar intended use. See MPEP 2144.07 that discussed that when the prior art recognizes something is suitable for a similar intended use/purpose, such a thing is obvious.
In addition, Herz imparts reasoning for obviousness because the teaching shows the plant protein was contained in the textured plant material and thus such as thing was successfully achieved and published at the time of filing, which means it was within the general skill of one with ordinary skill in the art to utilize plant protein which is contained within the texture plant material because it would have been obvious to one with ordinary skill in the art to do such a thing on the basis of its suitability for a similar intended use. See MPEP 2144.07 that discussed that when the prior art recognizes something is suitable for a similar intended use/purpose, such a thing is obvious.
Lastly, Hao is silent to the beet dry powder.
Espin teaches a betalain pigment composition from red beet plants (page 1 lines 5-8). Per applicants’ specification paragraph ([0045]) Beta vulgaris ssp. vulgaris var. Vulgaris is also referred to as a table beet, a red beet (emphasis added), or a beet root. Espin teaches the composition may be in powdered form (page 9 lines 15-16). Further, Espin teaches the powdered red beet composition can be used to provide color to an edible product (page 9 lines 32-34, Claim 14).
It would have been obvious to one with ordinary skill in the art to modify Hao in view of Espin to include a beet dry powder derived from Beta vulgaris ssp. vulgaris var. Vulgaris to provide color to the food product. It would have been obvious to one with ordinary skill in the art to include the beet dry powder in an amount to achieve the desired color of the product. . See MPEP 2144.05(II)(A) 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. "[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." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
With regard to Claim 17, Lastly, Hao is silent to the beet dry powder.
Espin teaches a betalain pigment composition from red beet plants (page 1 lines 5-8). Per applicants’ specification paragraph ([0045]) Beta vulgaris ssp. vulgaris var. Vulgaris is also referred to as a table beet, a red beet (emphasis added), or a beet root. Espin teaches the composition may be in powdered form (page 9 lines 15-16). Further, Espin teaches the powdered red beet composition can be used to provide color to an edible product (page 9 lines 32-34, Claim 14).
It would have been obvious to one with ordinary skill in the art to modify Hao in view of Espin to include a beet dry powder derived from Beta vulgaris ssp. vulgaris var. Vulgaris to provide color to the food product. It would have been obvious to one with ordinary skill in the art to include the beet dry powder in an amount to achieve the desired color of the product. . See MPEP 2144.05(II)(A) 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. "[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." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Response to Arguments
Applicants’ arguments with respect to claim(s) 1 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Applicant argues that example 10 in the specification compared to example 9 shows improvement in hardness. First, this argument is not found to be persuasive because example 10 does not provide a sufficient amount of data to show unexpected results. See MPEP 716.02(d)(II) To establish unexpected results over a claimed range, applicants should compare a sufficient number of tests both inside and outside the claimed range to show the criticality of the claimed range. In re Hill, 284 F.2d 955, 128 USPQ 197 (CCPA 1960). In this case, example 10 and example 9 are shown in table 5 of the specification. Example 10 contains 1 w/w% beet dry powder while example 9 contains no beet dry powder. These two data points do not provide a sufficient amount of results over the claimed range to show any unexpected results. Further, applicant is comparing example 10 to example 9. Further, the data presented by applicant in example 10 and example 9 are missing points outside the upper limit of the range, for example beet dry powder in amounts such as of 2.5, 3, and/or 3.5 parts by weight per 100 parts by weight of the textured plant protein. Also the data presented by applicant in example 10 and example 9 are missing points outside the lower limit of the range, the examiner acknowledges example 9 teaches beet dry powder in an amount of 0 parts by weight per 100 parts by weight of the textured plant protein, but additional data points of beet dry powder in amounts such as 0.1 and/or 0.25 parts by weight per 100 parts by weight of the textured plant protein would be necessary to show any unexpected results. Lastly, although example 10 shows beet dry powder in an amount of 1 part by weight per 100 parts by weight of the textured plant protein, one data point inside the claimed range is insufficient to show unexpected results. Points such as, but not limited to, 0.5, 0.75, 1.5 and/or 2 parts by weight per 100 parts by weight of the textured plant protein would be necessary to show any unexpected results. Therefore, applicants’ argument with regard to the unexpected results are not found to be persuasive.
Next, applicant argues that the newly amended limitation of “beet dried powder” is clearly distinguished from the beet extract taught by Bonner-Heine. This argument is moot in view of the new grounds of rejection. As a result of the amendment, Bonner-Heine is not loner relied upon to teach the “Beet dry powder” limitation. Now Espin is relied upon to teach the claimed limitation.
Conclusion
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/K.I.D./Examiner, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792
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