DETAILED ACTION
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 April 23, 2026 has been entered. Claims 10 and 11 have been cancelled. Claims 18-21 are new. Claims 1-9 and 12-21 are pending examination.
Claim Rejections-35 U.S.C. §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- 5, 9 and 11- 17 are rejected under 35 U.S.C. 103 as being unpatentable over Kweldam (NL 1008364 – WIPO Machine Translation)
Regarding claims 1, 2, 5, 14 and 16-19, Kweldam discloses a method of preparing an artificial meat product (i.e., vegan product from non-animal protein) comprising the steps of: (a) preparing a mixture comprising 0.1 to 20% by weight non-animal protein, 0.1 to 5 wt% vegetable thickener; 1 to 10 wt% vegetable fat or vegetable oil and water (i.e., a malleable mass – p. 1); (b) intensively stirring the mixture at a temperature of 40° to 90°C to form an emulsion (i.e., comminuting the mass into particles); (c) adding a calcium salt solution to form a fibrous product (i.e., achieve hardening of the particles- p. 2/Example 1). Kweldam discloses the calcium salt solution is added while stirring for a certain period of time at a certain stirring speed (i.e., comminuting the malleable mass in the presence of the aqueous solution of salt - Example 1). Kweldam discloses that by modifying the speed the size of the fibers can be regulated (p. 2/Example 1).
While Kweldam does not disclose the precisely claimed ranges of protein, thickener and vegetable fat, 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).
Kweldam discloses the non-animal protein is a vegetable protein or a mixture of vegetable protein.
Kweldam discloses the vegetable thickener is a polysaccharide wherein the polysaccharide is alginate, carrageenan, guar gum pectin, xanthan gum and/or locust bean gum.
Regarding claims 3, 20 and 21, Kweldam discloses all of the claim limitations as set forth above. Kweldam discloses wherein the mass percentage amounts of the components A, B and C is such that the equation, i.e., X = aA +bB +cC, is fulfilled as claimed. For example, when a=5 and the amount of A, the protein content is 10% by weight; b=15 and the amount of B, the vegetable thickener is 3,4% by weight, c=10 and the amount of C, the polysaccharide is zero, X=101.
Regarding claim 4, Kweldam discloses all of the claim limitations as set forth above. Khwedam discloses embodiments where the mass ratio of A:B falls within the claimed ranges. For example, when the amount of A, the protein content is 10% by weight; and the amount of B, the vegetable thickener is 5% by weight the ratio of A:B is 2:1. Given component C is optional, the limitations with regards to the ratio of A:C and B:C are satisfied.
Regarding claim 9, Kweldam discloses all of the claim limitations as set forth above. Kweldam discloses wherein the non-animal protein is from soy (i.e., 100% by weight of component A).
Regarding claim 12, Kweldam discloses all of the claim limitations as set forth above. Kweldam discloses the concentration of the calcium salt in the aqueous salt solution is 0.1 to 5% by weight (i.e., about .04 to about 1.8 % calcium in the aqueous salt solution where the molar mass of Ca is about 40.08 g/mol and the molar mass of CaCl2 is about 110.98 g/mol).
Regarding claim 13, Kweldam discloses all of the claim limitations as set forth above. While Kweldam discloses adding a calcium salt, i.e., calcium chloride, to the emulsion, the reference is silent with respect to ratio of calcium salt solution to the malleable mass. One of ordinary skill in the art at the effective filing date of the present application would have chosen a ratio to get effective mixing and interaction of calcium with the components of the malleable mass and achieve the desired fiber structure.
Regarding claim 15, Kweldam discloses a process of making a sausage by processing the artificial meat product of claim 1 into a sausage form. Kweldam disclose an artificial meat product that comprises all ingredients which would qualify the product as vegan (i.e., animal protein, vegetable thickener, vegetable fat, calcium chloride and water).
Claim 6-8 is rejected under 35 U.S.C. 103 as being unpatentable over Kweldam (NL 1008364-WIPO Machine Translation) as applied to claim 1, and further in view of Rose et al. (US 2015/0351427).
Regarding claim 6, Kweldam discloses all of the claim limitations as set forth above. While Kweldam disclose an artificial meat product with 0.1 to 5 wt% vegetable thickener, the reference is silent with respect to methylcellulose.
Rose et al. teach a method of making a meat substitute product comprising the steps of (a) shearing/stirring a mixture of water, vegetable fat/oil, protein, sodium alginate, and methylcellulose to produce a stable emulsion; (b) while stirring adding a solution of water, calcium chloride and micellar casein to the emulsion to form fibers ; and (c) pressing out or centrifuging out the water (Abstract, [0030]-[0035]). Rose et al. teach that an increase in hydrocolloids, preferably methylcellulose in the emulsion increases the yield and give softer fibers, similar to chicken and fish ([0025], [0041]). Rose et al. teach that by adding methylcellulose to the emulsion, there is better control of the fiber structure ([0039]).
Kweldam and Rose et al. are combinable because they are concerned with the same field of endeavor, namely, artificial meat products. It would have been obvious to one of ordinary skill in the art to have added methylcellulose, as taught by Rose et al., as part of the vegetable thickeners, e.g., alginate, in the emulsion composition of Kweldam to obtain fibers with softer texture and useful to mimic the soft texture of chicken or fish.
Given Rose et al. teach that by increasing the amount of methylcellulose in a meat substitute product a softer texture is obtained, one of ordinary skill in the art would have adjusted the amount of methylcellulose in the emulsion of Kweldam to obtain a desired texture.
Regarding claims 7 and 8, modified Kweldam discloses all of the claim limitations as set forth above. While Rose et al. teach the use of methylcellulose, the reference is silent with respect to pre-hydrated or aqueous gel forms. Absent evidence to the contrary, since Rose et al. teach methylcellulose generally, 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 used any form of methylcellulose including pre-hydrated or an aqueous gel form, and arrive at the present invention.
Response to Arguments
Applicant's arguments filed April 23, 2026 have been fully considered but they are not persuasive.
Applicant submits, while Kweldam, a process wherein a mixture is prepared with 0.1 to 20% by weight of one or more non-animal proteins (p. 1), Example 1 of Kweldam uses 7.32 wt% of vegetable protein, and Example 2 uses 6.4 wt% of vegetable protein, both of which are outside the range of the protein component A as specifically recited. Applicant argues “the examples disclosed in Kweldam do not actually allow for processing emulsions having a high content of protein from plant or microbial origin. Rather the process only achieves lower protein content of 7.32%.”
In this case, Kweldam discloses an artificial meat product prepared with 0.1 to 20% by weight of one or more non-animal proteins (p. 1 at paragraph 9). Disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments. In re Susi, 440 F.2d 442, 169 USPQ 423 (CCPA 1971). A known or obvious composition does not become patentable simply because it has been described as somewhat inferior to some other product for the same use.. (MPEP §2123 II).
Applicant submits the claimed ranges of A, B and C are critical. Applicant explains the process of claim 1 allows for producing protein products with controllable and uniform formation of meat like fiber having a positive sensorial perception with a similar succulence and moisture content as meat. Applicant submit the Examples demonstate that for achieving these properties, the non-animal protein component A, the gelling agent of component B and the optional component C must be present in the malleable mass in certain relative amounts in order to achieve a proper hydration of the protein component A, the component B and the optional component C. Proper hydration of all components in the malleable mass is critical to provide for the above benefits. It has also been discovered that component A and component B and the optional component C compete for the water contained in the malleable mass and, therefore, the relative amount of components B and C must not exceed a certain maximum amount if the malleable mass contains a large amount of non-animal protein. However, their amounts must not be too low to achieve sufficient hardening. It is an unexpected technical effect that the specific compositional ratios at high protein concentrations enable the production of a vegan edible product with the desired sensory texture. This effect arises directly from the particular and critical compositional ratios and the presence of the fat and would not be expected by the skilled person. Applicant respectfully submits that the specific compositional ratios at high protein concentrations are not taught or suggested by Kweldam.
Arguments presented by applicant cannot take the place of evidence in the record (MPEP §2145 I). Applicant has not provided any factual evidence to rebut the prima facie case of obviousness set forth above. Specifically, Applicant has not shown the criticality of the claimed ranges.
Kweldam discloses a method of preparing an artificial meat product (i.e., vegan product from non-animal protein) comprising the steps of: (a) preparing a mixture comprising 0.1 to 20% by weight non-animal protein, 0.1 to 5 wt% vegetable thickener; 1 to 10 wt% vegetable fat or vegetable oil and water (i.e., a malleable mass – p. 1); (b) intensively stirring the mixture at a temperature of 40° to 90°C to form an emulsion (i.e., comminuting the mass into particles); (c) adding a calcium salt solution to form a fibrous product (i.e., achieve hardening of the particles- p. 2/Example 1). Kweldam discloses the calcium salt solution is added while stirring for a certain period of time at a certain stirring speed (i.e., comminuting the malleable mass in the presence of the aqueous solution of salt - Example 1). Kweldam discloses that by modifying the speed the size of the fibers can be regulated (p. 2/Example 1).
While Kweldam does not disclose the precisely claimed ranges of protein, thickener and vegetable fat, 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).
Conclusion
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.
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
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