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 with traverse of Group I, and the meat analogue, claims 1-8 and 10 in the reply filed on September 25, 2025 is acknowledged.
The traversal is on the ground(s) that the groups of inventions are linked by the common technical feature of a fermented material with polymodal particle size distribution which is a special technical feature as it defines a contribution over the prior art. This argument is not convincing as the prior art teaches of the argued feature. See the teachings of Sozer cited previously and below. Applicant further argues that as the particle sizes recited in the dependent claims of each respective groups is the same, and as the difference between a meat and grain is merely intended use, the inventions should be examined together because no search burden is present. This argument is not convincing as the restriction was based on lack of unity and as discussed previously and herein the groups and species are not linked by a special technical feature. Regardless, it is noted that the search of method claims is distinct from that of product claims, and that the search of two different products is distinct such that either would require different search terms and queries. The fact that a parameter overlaps is not evidence of no burden for search requirements.
The requirement is still deemed proper and is therefore made FINAL. Claims 9 and 11-15 have been withdrawn as directed to non-elected species and/or inventions.
Claim Objections
Claims 1-8 and 10 are objected to because of the following informalities:
Claim 1 step i line 3 recites “particle (particle)”. This appears to be a typographical error as it recites a duplicate word in the parenthetical.
Claim 1 step i lines 2-3 recites “wherein the fermented material comprising a polymodal particle (particle) size distribution;”. Grammatically, this should be “wherein the fermented material comprises a polymodal particle…”
Appropriate correction is required.
Claim Rejections - 35 USC § 112
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 1-8 and 10 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.
Claim 1 step iii recites “optionally combining the dough material of step (ii) with a food product and/or another protein source”. As the term “another” means one more of the same, but no other protein has been recited it is unclear as to if “another protein source” is simply nomenclature, or if some other protein is required when optional step iii is performed.
Claim 2 recites “at least one first mean particle size and at least one second particle size; wherein the at least one first mean particle size comprises a larger mean particle size and/or the at least one second mean particle size comprises a smallest mean particle size”. First the term “the at least one second mean particle size” is unclear as it lacks antecedent basis. Second the terms “largest” and “smallest” are unclear as they are relative terms and no bench mark has been set for identifying what they are compared to. Third, it is unclear as to if “at least one first mean particle size”, “at least one second mean particle size”, “the largest mean particle size”, and “the smallest mean particle size” are simply nomenclature, or are referring to a mean or average which is D4,3, or a median D50, or other particle measurements disclosure in the specification, such as D90, wherein 90% of the particles are below the disclosed range (see instant specification page 10). For the purpose of prior art comparison, the claims will be interpreted in the broadest reasonable sense as referring to the general particle size and not limited to one specific measurement type. It is suggested applicant recite the claim in a clear manner. For example, the claim could be written as: particles within the polymodal particle size distribution comprise a first fraction and second fraction, wherein the particle size of the first fraction is larger than the particle size of the second fraction. It is noted that if desired, applicant could further identify the particle size by D50 or D90 as disclosed in the specification page 10. Claims 3-7 recite various combinations of “the largest mean particle size”, “the smallest mean particle size”, “a mean particle size”, and “smallest mean gran size”, and thus are rejected for substantially the same reasons.
Further regarding claim 5, the term “the smallest mean gran size” is unclear as it does not have proper antecedent basis in the claim.
Regarding claim 10, the phrase "such as", which is recited multiple times, renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Regarding claim 10, the phrase "for example"/”e.g.” renders the claim indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
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 10 recites the broad recitation dry extrusion, and the claim also recites having a moisture content of below 15% 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.
Claim Rejections - 35 USC § 102/103
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
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, 8, and 10 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Sozer et al (WO 2015/158959 A1).
Regarding claims 1, 8, and 10, Sozer et al (Sozer) teaches a process of making an edible product selected from the group including meat analogs (abstract and page 8 lines 18-26), wherein the process comprises:
Providing fermented fractionated material that has a polymodal size distribution with coarse particles having an average particle size of about D50 20-100um (0.02-0.1mm) and D90 40-150um (0.04-0.15mm) and fine particles having an average particle size D50 of 12-50um (0.012-0.05mm) and D90 of 30-85 (0.03-0.085mm) (abstract, page 1 lines 11-15, page 2 lines 33-36, page 5 lines 5-11, 19-20, and 29-35);
Forming a dough with the fermented ingredient, wherein the dough preferably has a water content of 30-60% (page 7 lines 26-40); and
Subjecting the dough material to a first treatment, including extrusion, to provide an edible product (page 8 lines 19-21 and 38-39).
Also see claims 1, 2, 8, 12, and 14.
Regarding the process as for adjusting the texture of an edible product as recited in claim 1, Sozer is not specific to the process as for adjusting the texture of the product, however as Sozer recites the same method steps as claimed and disclosed, the method of the prior art would necessarily have the same result. This position is supported as the addition of a granular material to another food material, such as taught by Sozer, would necessarily “adjust” the texture. Furthermore, it is noted that a preamble is generally not accorded any patentable weight where it merely recites the purpose of a process or the intended use of a structure, and where the body of the claim does not depend on the preamble for completeness but, instead, the process steps or structural limitations are able to stand alone. See In re Hirao, 535 F.2d 67, 190 USPQ 15 (CCPA 1976) and Kropa v. Robie, 187 F.2d 150, 152, 88 USPQ 478, 481 (CCPA 1951).
Claims 2 and 5-7 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by, or in the alternative, under 35 U.S.C. 103 as being unpatentable over Sozer et al (WO 2015/158959 A1).
Regarding claims 2 and 5-6, as discussed above, the claimed terms are unclear, such that it is unclear what the terms “largest” and “smallest” are relative to, as well as what the nomenclature used is intended to encompass. Regardless, as Sozer teaches providing fermented fractionated material that has a polymodal size distribution with coarse particles (“larger” particles compared to the “fine particles” and “smallest” particles compared to the final product size) having an average particle size of about D50 20-100um (0.02-0.1mm) and D90 40-150um (0.04-0.15mm) and fine particles (an alternative interpretation of “smallest” particles when compared to the coarse particles) having an average particle size D50 of 12-50um (0.012-0.05mm) and D90 of 30-85 (0.03-0.085mm) (abstract, page 1 lines 11-15, page 2 lines 33-36, page 5 lines 5-11, 19-20, and 29-35, and claims 1, 2, 8, 12, and 14) the claimed particle sizes appear encompassed, or alternatively obvious over the teachings of the prior art, wherein it would have been obvious for a mean D4,3 particle size to be within the claimed ranges based on the median (D50) and the D90 being overlapping. For example, when 90% of the particles were less than 0.15mm, it would be expected that the average or mean particle size also be below 0.15mm, and thus the teachings of the prior art would, in the alternative, at least make obvious the instantly claimed limitations.
Regarding claim 7, the claimed limitation recites that 20-80% of the smallest mean particle size “may” be present, and thus the limitation is optional and the claim has been included in the rejection.
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Sozer et al (WO 2015/158959 A1).
Regarding claim 3, as discussed above, the claimed terms are unclear. Regardless, Sozer teaches providing fermented fractionated material that has a polymodal size distribution with coarse (“larger”) particles having an average particle size of about D50 20-100um (0.02-0.1mm) and D90 40-150um (0.04-0.15mm) and fine (“smaller”) particles having an average particle size D50 of 12-50um (0.012-0.05mm) and D90 of 30-85 (0.03-0.085mm) (abstract, page 1 lines 11-15, page 2 lines 33-36, page 5 lines 5-11, 19-20, and 29-35, and claims 1, 2, 8, 12, and 14). Thus, the particle sizes disclosed by Sozer would at least make obvious a largest particle size at least four times that of a smallest size, such as when the smallest size was 0.012mm and the largest was 0.1mm. Sozer discloses overlapping ranges. It would have been obvious to one of ordinary skill in the art to select any portions of the disclosed ranges including the instantly claimed ranges from the ranges disclosed in the prior art references, particularly in view of the fact that; "The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set percentage ranges is the optimum combination of percentages" In re Peterson 65 USPQ2d 1379 (CAFC 2003). Also In re Malagari, 182 USPQ 549,533 (CCPA 1974) and MPEP 2144.05. Regarding the uncertainty of the claim, it is additionally noted for the purpose of compact prosecution that it would have been obvious for a mean D4,3 particle size to be within the disclosed median (D50) and D90 sizes. For example, when 90% of the particles were less than 0.15mm, it would be expected that the average or mean particle size also be below 0.15mm, and thus the teachings of the prior art would at least make obvious the instantly claimed limitations.
Claim 4 is rejected under 35 U.S.C. 103 as being unpatentable over Sozer et al (WO 2015/158959 A1), further in view of Ahnan et al (WO 2022/079452 A1).
As discussed above, Sozer teaches of a fermented particulate material that is used in forming meat analogs.
Sozer is silent to the meat analog as comprising fermented material with one first mean particle size comprising a largest mean particle size having a mean particle size in the range of 0.5-1.5mm as recited in claim 4.
Ahnan et al (Ahnan) teaches meat analogs formed with fermented particles having an average diameter of 0.5-4mm have favorable organoleptic properties (abstract, page 2 lines 7-17, page 7 lines 12-20, and page 12 line 30).
Regarding the process according to claim 2, wherein the largest mean particle size [of the fermented material] has a mean particle size in the range of 0.5-1.5mm as recited in claim 4, as discussed above, the claimed limitations are unclear. Regardless, it would have been obvious for the process of forming the meat analog as taught by Sozer to include the addition of fermentation particles with an average diameter of 0.5-4mm to provide favorable organoleptic properties in view of Ahnan. The prior art discloses overlapping ranges. It would have been obvious to one of ordinary skill in the art to select any portions of the disclosed ranges including the instantly claimed ranges from the ranges disclosed in the prior art references, particularly in view of the fact that; "The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set percentage ranges is the optimum combination of percentages" In re Peterson 65 USPQ2d 1379 (CAFC 2003). Also In re Malagari, 182 USPQ 549,533 (CCPA 1974) and MPEP 2144.05. Thus, the claimed limitations are considered obvious over the teachings of the prior art.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claim 1-8 and 10 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 11 and 13 of copending Application No. 17/776,551 as amended October 3, 2025 (reference application ‘551).
Although the claims at issue are not identical, they are not patentably distinct from each other because both claim a method which produces a meat analog comprising the steps of: providing a fermented material; adjusting the moisture content from 10-75% to form a dough, optionally combining the dough material with another protein source; and subjecting the dough or combined dough to a first treatment selected from a group including extrusion (claim 11), wherein the fermented material has been fractionated such that there is a polymodal particle size distribution including a largest particle size which is above 1.0mm, encompassing 1.0-1.5mm, and smallest particle size of below 0.25mm, encompassing 0.25mm and below, such as 0.2mm, and a smallest size which is four times smaller than the largest size (claim 13). It is noted that instant claim 7 is an optional limitation and thus has been included herein.
‘551 is not specific to the process as for adjusting the texture of the product, however as ‘551 recites the same method steps as instantly claimed, the method claimed by ‘551 would necessarily have the same result. Furthermore, it is noted that a preamble is generally not accorded any patentable weight where it merely recites the purpose of a process or the intended use of a structure, and where the body of the claim does not depend on the preamble for completeness but, instead, the process steps or structural limitations are able to stand alone. See In re Hirao, 535 F.2d 67, 190 USPQ 15 (CCPA 1976) and Kropa v. Robie, 187 F.2d 150, 152, 88 USPQ 478, 481 (CCPA 1951).
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Thue et al (EP 3508067) teaches the use of at least two sizes of proteins gives an irregular grain size to meat analogs thus providing a texture of minced meat (paragraph 40).
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KELLY BEKKER
Primary Patent Examiner
Art Unit 1792
/KELLY J BEKKER/Primary Patent Examiner, Art Unit 1792