DETAILED ACTION
Amendments made July 15, 2026, have been entered.
Claims 1-22 are pending.
Claims 9 and 11-15 have been withdrawn.
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 .
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.
Claim Objections
The objection to claims 1-8 and 10 because of the including duplicate words has been withdrawn in light of applicant’s amendments made July 15, 2026.
Claim Rejections - 35 USC § 112
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
The rejection of claims 2-7 and 10 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 for the recitation of “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” in claim 2; the terms “largest” and “smallest” in claims 3-7 respectively; and “such as” and a broad and narrow limitation in claim 10 has been withdrawn in light of applicant’s amendments made July 15, 2026.
Claims 1-8, 10, and 16-22 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 a different protein source”. As the term “different” means not identical, separate or distinct, but no other protein has been recited it is unclear as to if “a different source” is simply nomenclature, or if some other protein is required when optional step iii is performed.
Regarding claim 17, 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 17, 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).
Claim 19 recites particle sizes a through d. Between particles sizes c and d the “and/or” is recited and it is unclear as to if this term relates only to c and d, or all options a through d. Thus, it is unclear as to if only one particles size recited in a-d is required by the claim, or as to if the claim would require particle sizes a and b, and additionally c and/or d. For prior art comparison, the claim will be considered in the broadest reasonable sense as only limited to one of said particle size recited in a through d. This is consistent with the specification.
Claim Rejections - 35 USC § 102/103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
The rejection of claims 1, 8, and 10 under 35 U.S.C. 102(a)(1) as being anticipated by Sozer et al (WO 2015/158959 A1) has been withdrawn in light of applicant’s amendments made July 15, 2026 which require a lactic acid to acetic acid ratio or acetic acid to ethanol ratio of more than 20:1.
The rejection of claims 2 and 5-7 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) has been withdrawn in light of applicant’s amendments made July 15, 2026 which require a lactic acid to acetic acid ratio or acetic acid to ethanol ratio of more than 20:1.
The rejection of claim 3 under 35 U.S.C. 103 as being unpatentable over Sozer et al (WO 2015/158959 A1) has been withdrawn in light of applicant’s amendments made July 15, 2026 which require a lactic acid to acetic acid ratio or acetic acid to ethanol ratio of more than 20:1.
Claims 1-3, 5, 7-8, 10, 16-17, and 20-22 are rejected under 35 U.S.C. 103 as being unpatentable over Sozer et al (WO 2015/158959 A1) in view of Legarth (WO 2017/077139).
Regarding claims 1, 2, 8, 10, and 22 Sozer et al (Sozer) teaches a process of providing an edible product selected from the group including animal feeds and 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, i.e. a first fraction, 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, i.e. a second fraction, 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.
Sozier teaches fermentation with lactic acid bacteria (page 5 lines 33-35) but is silent to the fermented material as comprising a ratio of lactic acid to acetic acid or lactic acid to ethanol in mM/mM of more than 20:1 as recited in claim 1.
Legarth teaches fermenting food materials with lactic acid bacteria, which produces lactic acid and other metabolic products which contribute to the organoleptic, textural, nutritional, and pharmacological profile of the fermented composition (abstract and page 8 lines 19-21). Legarth teaches that the activity of the lactic acid bacteria is linked with fermentation as acidification, i.e. the production of acids, inhibits growth of spoilage agents and provides an additional hurdle for spoilage and parthenogenic microorganisms (page 8 lines 11-17). Legarth teaches that the fermentation process is preferably homofermentative, wherein the lactic acid is the major fermentation product and the levels of acetic acid and ethanol are below, around, or only slightly above the taste threshold, including ratios of lactic acid to acetic acid or ethanol of more than 1:1, including 20:1 or more (mM/mM) (page 10 line 31 through page 11 line 10).
Regarding the fermented material as comprising a ratio of lactic acid to acetic acid or lactic acid to ethanol in mM/mM of more than 20:1 as recited in claim 1, it would have been obvious for the lactic acid bacteria fermentation of Sozer to be homofermative with a ratio of lactic acid to acetic acid or ethanol of more than 1:1, including more than 20:1 (mM/mM) in order have no taste from acetic acid and/or ethanol and/or in order to provide lactic acid as the main product for its acidification and spoilage prevention properties and/or its contribution to the organoleptic, textural, nutritional, and pharmacological profile of the fermented composition in view of Legarth.
Regarding claims 3 and 5, as discussed above, Sozier teaches providing fermented fractionated material that has a polymodal size distribution with coarse particles, i.e. a first fraction, 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, i.e. a second fraction, 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 teach the claimed particle sizes appear encompassed, or alternatively obvious over the teachings of the prior art. Sozier 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 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.
Regarding claims 16 and 17, as discussed above Sozer teaches the process of providing the edible product as comprising: 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). Sozer is not specific to the type of extrusion, however, as the dough preferably had a water content of 30-60%, the teachings of Sozer would encompass, or at least make obvious wet extrusion as claimed. The position is further supported as Sozer teaches that convention processing methods for extrusion may be used (page 8 lines 38-39). It is noted that due to the optional limitations recited in claim 16 of thermoplastic, wet, or dry extrusion, the further limitations defining dry extrusion recited in claim 17 are not required limitations, and thus claim 17 is also included in the rejection. Additionally it is noted that claim 10, from which claims 16 and 17 depend recite that the process “may” include extrusion, and thus extrusion would remain optional in the claimed limitations.
Regarding the fermented material as fermented for at least 72 hours as recited in claim 20, Sozer is silent to the fermentation time of the lactic acid bacteria as claimed, however, Legarth teaches that a certain time for fermentation, including more than 8 hours, or more than 72 hours can provide the desired nutrition and/or pharmacological effects of the fermented composition (abstract and page 12 lines 1-10). Thus, it would have been obvious to adjust the time for the fermentation as taught by Sozer to provide for the desired nutrition and/or pharmacological effects of the fermented composition in view of Legarth. Thus, the claimed range is considered obvious over the teachings of the prior art. It is further noted that to use known fermentation times, such as 72 hours or more as taught by Legarth, is considered particularly obvious.
Regarding the material to be fermented during fermentation as having a moisture content of 35-45% as recited in claim 21, Sozer is not specific to the claimed limitation, however, Legarth teaches that the moisture content of the plant material to be fermented may be another relevant parameter to control the fermentation process, wherein the moisture content during fermentation may be in the range of 20-60%, preferably in the range of 35-45% (page 13 lines 17-21). It would have been obvious to adjust the moisture content during fermentation to 35-45% in the fermentation taught by Sozer to provide control of the process and used a preferred range in view of Legarth.
Claim 4 is rejected under 35 U.S.C. 103 as being unpatentable over Sozer et al (WO 2015/158959 A1) in view of Legarth (WO 2017/077139), further in view of Ahnan et al (WO 2022/079452 A1).
As discussed above, Sozer teaches fermented particulate material used in forming meat analogs with coarse particles, i.e. a first fraction, 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, i.e. a second fraction, having an average particle size D50 of 12-50um (0.012-0.05mm) and D90 of 30-85 (0.03-0.085mm).
Sozer is silent to the first (larger) fraction as having a 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 first (larger) fraction as having a particle size in the range of 0.5-1.5mm as recited in claim 4, 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.
Claims 1, 2, 10, 16-17, and 20-22 are rejected under 35 U.S.C. 103 as being unpatentable over Legarth (WO 2014/206419) in view of Legarth (WO 2017/077139) and Wright (“Is Poultry Performance Affected by Feed Particle Size” September 2015 pages 1-5 The Poultry Site https://www.thepoultrysite.com/articles/is-poultry-performance-affected-by-feed-particle-size).
Regarding claims 1 and 2, Legarth (WO 2014/206419; “Legarth”) teaches a method for providing food or animal feed (page 22 lines 12-19) comprising:
providing a fermented material subject to a fractionation treatment with a size of less than 5cm, including to an average particle size of 0.1mm- 5cm (page 15 line 31 through page 16 line 5 and claims 14 and 15);
adjusting the moisture content of the material provided in step i to 10-15%, which is considered “providing a dough” as it achieves a product with an overlapping composition including an overlapping moisture content in a fermented material (page 15 lines 9-19, page 21 lines 7-9, and claim 24); and
subjecting the dough material to a first treatment to provide an edible product (page 21 lines 11-13 and 29-30, page 22 lines 11-25, and claim 2; note the first treatment may be cooling or combining of the fermented material with other optional food components).
Legarth is silent to the ratio of lactic acid to acetic acid or lactic acid to ethanol as more than 20:1 in mM/mM or to the fractionation as forming a polymodal particle size distribution as recited in claim 1, preferably wherein a first fraction is larger than a second fraction as recited in claim 2.
Regarding the ratio of lactic acid to acetic acid or lactic acid to ethanol as more than 20:1 in mM/mM as recited in claim 1, Legarth teaches the fermentation is preferably homolactic (page 13 lines 33-35), but is silent to the claimed ratios.
Legarth (WO 2017/077139; Legarth ‘139) teaches fermenting food materials with lactic acid bacteria, which produces lactic acid and other metabolic products which contribute to the organoleptic, textural, nutritional, and pharmacological profile of the fermented composition (abstract and page 8 lines 19-21). Legarth ‘139 teaches that the activity of the lactic acid bacteria is linked with fermentation as acidification, i.e. the production of acids, inhibits growth of spoilage agents and provides an additional hurdle for spoilage and parthenogenic microorganisms (page 8 lines 11-17). Legarth ‘139 teaches that the fermentation process is preferably homofermentative, including homolactic which is wherein the lactic acid is the major fermentation product and the levels of acetic acid and ethanol are below, around, or only slightly above the taste threshold, including ratios of lactic acid to acetic acid or ethanol of more than 1:1, including 20:1 or more (mM/mM) (page 10 line 31 through page 11 line 10).
Regarding the fermented material as comprising a ratio of lactic acid to acetic acid or lactic acid to ethanol in mM/mM of more than 20:1 as recited in claim 1, it would have been obvious for the homolactic fermentation of Legarth to meet the conditions known and described in the art, including having ratios of lactic acid to acetic acid or ethanol of more than 1:1, including 20:1 or more (mM/mM) as taught by Legarth ‘139. It would have been further obvious for the lactic acid bacteria fermentation of Legarth to be homofermative with a ratio of lactic acid to acetic acid or ethanol of more than 1:1, including more than 20:1 (mM/mM) in order have no taste from acetic acid and/or ethanol and/or in order to provide lactic acid as the main product for its acidification and spoilage prevention properties and/or its contribution to the organoleptic, textural, nutritional, and pharmacological profile of the fermented composition in view of Legarth ‘139.
Regarding the fractionation as forming a polymodal particle size distribution as recited in claim 1, preferably wherein a first fraction is larger than a second fraction as recited in claim 2, as discussed above, Legarth teaches fractionation to a size of less than 5cm, including to an average particle size of 0.1mm- 5cm, but is silent to the particles as having a polymodal distribution.
Wright teaches that in animal feed finer grains lead to improved digestion and pellet quality; and course ingredients are necessary to complement the natural design and function of the GI tract and have a positive effect on live performance (page 1 and page 4 second half of the page). Wright teaches that finer grinds lead to improved body weight, feed conversion, and pellet durability (page 2, Recent research on feed particle size); and that coarser grinds increase body weight and feed conversion (page 3). Wright teaches that the coarse and fine grinds are combined to form feeds (page 2, last two paragraphs).
It would have been obvious for the feed product as taught by Legarth to comprise a polymodal distribution with a first larger fraction, i.e. coarse grains, and a second smaller fraction, i.e. fine grains, in order to receive the benefits of both as taught by Wright, including improved digestion and pellet quality from finer grains, and complementation of the natural design and function of the GI tract and a positive effect on live performance from coarse grains.
Regarding claims 10, 16, and 17, the claims recite that the respective limitations, such as extrusion “may” be present, and thus the limitations are optional, and the claims have been included in the rejection.
Regarding claim 20, Legarth teaches that the fermentation is for greater than 72 hours (page 3 lines 24-25, page 4 lines 6-9, page 4 lines 25-27 and 33-35, and claim 1).
Regarding claim 21, Legarth teaches the moisture content during fermentation is 25-85%, such as 27.5-50% and preferably 32-38% (page 15 lines 15-19).
Regarding claim 22, Legarth teaches the moisture content during fermentation is 25-85%, such as 27.5-50% and preferably 32-38% (page 15 lines 15-19). It is noted that the instant specification page 11 lines 22-23 states “fermented” relates to controlled metabolic process of the material(s) to be fermented.
Claims 3-7 and 18-19 are rejected under 35 U.S.C. 103 as being unpatentable over Legarth (WO 2014/206419) in view of Legarth (WO 2017/077139) and Wright (“Is Poultry Performance Affected by Feed Particle Size”), further in view of Murphy et al. (“Influence of hammer mill screen size and grain source (wheat or sorghum) on the growth performance of male grower pigs” May 2009, pages 1-15 Pork CRC https://porkcrc.com.au/1B-107_Research_Report_.pdf).
As discussed above, Legarth teaches a method for providing food or animal feed comprising fractionation to a size of less than 5cm, including to an average particle size of 0.1mm- 5cm, wherein it would have been obvious to have a polymodal size distribution of both course and fine particles in view of Wright.
Legarth is silent to the polymodal particle size as comprising: a first fraction at least four times larger than a second fraction as recited in claim 3, or to a first fraction in the range of 0.5-1.5mm as recited in claim 4, or a second fraction in the range of 0.01-0.3mm as recited in claim 5, wherein the second fraction is 20-80% of the composition as recited in claim 7, or a second fraction in the range of 0.1-0.2mm as recited in claim 6, or 20-70% (w/w) of the fermented ingredient with a particle size below 0.5 mm and 20-70% of the fermented ingredient with a particle size above 0.5 mm as recited in claim 18, or to the fermented ingredient comprising a) 1-10% (w/w) of the fermented ingredient has a particle size above 1.0 mm; b) 45-55% (w/w) of the fermented ingredient has a particle size between 0.5-1.0 mm; c) 30-40% (w/w) of the fermented ingredient has a particle size between 0.25-0.5 mm; and/or d) 5-15% (w/w) of the fermented ingredient has a particle size below 0.25 mm as recited in claim 19.
Regarding the particle sizes recited in claims 3-7 and 18-19, Murphy teaches that it has been known when providing animal feed products, to use ingredients having about 40-55% of the particle size below 0.5mm, and about 45-60% of the particle size above 0.5mm; a largest particle size (1.7mm or 2mm respectively) that is at least four times larger than a smallest particle size (0.15mm); a first fraction size of 0.5-1.0mm (500um, 710 um, 850um, and 1.0mm); a second fraction size of 150um (0.15mm) that is about 30-35% of the composition; and particles above 1.0mm in the range of 1-10% with particles in the range of 0.5-1.0mm in the range of 45-60% (figure 1 on page 6). Murphy teaches that such particles sizes can provide for improved pellet quality and reduced feed wastage (executive summary, paragraph 2). The particle size distribution has been shown to also be advantageous in increasing feed durability and reducing the presence of fines (figure 3 on page 7).
To therefore modify Legarth’s fermentation feed ingredient with the known particle sizes taught by Murphy would have been obvious to one having ordinary skill in the art for the purpose of increasing the feed durability, pellet quality, and reduce feed wastage in view of Murphy. Thus, a composition comprising the claimed particle sizes recited in claims 3-7 and 18-19 would have been obvious to one of ordinary skill in the art. The position is further supported as Wright teaches the benefits of both coarse and fine particles within animal feed, that both can be combined to form a final feed product, and that there are established means to evaluate the effect of particle size on performance.
Regarding claim 7 the claim recites that the respective limitation “may” be present, and thus the limitation is optional, and the claim has been included in the rejection.
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.
Claims 1-8, 10, and 16-22 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 May 18, 2026 (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, wherein the ratio of lactic acid to acetic acid or lactic acid to ethanol is more than 10:1, which encompasses values such as 20:1 (claim 11), wherein the fermented material has been fractionated such that there is a polymodal particle size distribution including 1-10% with a size above 1.0mm (a first fraction at least 4 times larger than the second fraction), 45-55% of a particle size of 0.5-1.0mm (optionally part of a first fraction), 30-40% with a size between 0.25-0.5mm (optionally part of the second fraction), and 5-15% with a size below 0.25mm (a second fraction 4 times smaller than the first fraction) (claim 13). It is noted that instant claims 7 and 16-17 are optional limitations and thus have 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).
‘551 is not specific to the fermentation material as fermented for at least 72 hours as recited in claim 20, or as having a moisture content of 35-45% during fermentation as recited in claim 21, however, as ‘551 claims fermentation, there would necessarily be fermentation time and moisture content, thus to determine an appropriate fermentation conditions including time and moisture content are considered obvious through routine practice of the claims of ‘551. Furthermore, the claimed range is considered specifically obvious as the same fermentation by product ratio of lactic acid to acetic acid or lactic acid to ethanol is claimed by both ‘551 and the instant claims. "[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)
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Response to Arguments
Applicant's arguments filed July 15, 2026 have been fully considered but they are not persuasive.
Applicant argues that the previously cited prior art does not teach the newly added claim limitations of a ratio of lactic acid to acetic or ethanol of more than 20:1. This argument is moot as the rejection was withdrawn in light of the amendment, and newly cited prior art Legarth et al was relied upon for teaching this limitation.
Applicant argues that the limitations recited in claims 3 and 4 would not have been obvious over the prior art. This argument is not convincing as claim 4 does not depend on claim 3, and thus, the limitations of claims 3 and 4 have not been considered in combination.
Applicant argues that the claimed particle sizes are not obvious because combining the fine and course particles claims provides filling of voids and binding. This argument is not convincing as Sozer teaches of the claimed limitations of forming a food product with a first and second particle size fraction as claimed. Additionally, it is noted that the claims are directed to a process of forming an edible product and not towards a method of filling voids and/or binding as argued. That the inventor has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious. See Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985).
Applicant argues that Ahnan, which was applied to claim 4, does not cure the deficiencies of Sozer because the combination of references would result in an undesirable product which was less mixed. This argument is not convincing as there is no evidence to support it and because, as discussed above, Ahnan teaches motivation for the claimed course particle size.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
FR 2793999 teaches polymodal particle size distribution in animal feed.
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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KELLY BEKKER
Primary Patent Examiner
Art Unit 1792
/KELLY J BEKKER/ Primary Patent Examiner, Art Unit 1792
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