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 .
The claim sets filed August 29-31, 2023 and March 27, 2024 are acknowledged. Claims 1-25 are pending in the application. Claims 14-19 are withdrawn from consideration (see below).
Election/Restrictions
Applicant's election with traverse of Group I, claims 1-13 and 20-25 in the reply filed on February 3, 2026 is acknowledged. The traversal is on the ground(s) that the single general inventive concept is the use of the particular binding emulsion recited in claim 1. This binding emulsion has also been applied in claim 14.
This is not found persuasive. The technical feature of an emulsion comprising water, lipid, and native patatin does not make a contribution over the prior art. Mellema et al. WO 2020173660 (hereinafter “Mellema”, #4 in the Foreign Patent Documents section of the IDS dated 8/29/2023) teaches a combination of water, oil, and undenatured (native) patatin (P9, L32-P10, L6). As demonstrated in Mellema, the special feature of an emulsion comprising water, a lipid, and native patatin was known prior to the filing of the internation application. Thus, Groups I and II lack unity of invention because the technical feature is not a special technical feature as it does not make a contribution over the prior art.
The requirement is still deemed proper and is therefore made FINAL.
Claims 14-19 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, there being no allowable generic or linking claim.
Claim Objections
Claim 24 is objected to because of the following informalities:
In claim 24 at the beginning of line 4, it is suggested to amend “wheat protein/gluten” before “potato protein” to “wheat protein, wheat gluten”.
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 2 and 23 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 2 recites “raw-type meat substitute” at line 3. It is unclear what is encompassed by this recitation. More specifically, the phrase "type" renders the claim indefinite because the claim includes elements not actually disclosed (those encompassed by "type"), thereby rendering the scope of the claim unascertainable. The addition of the word "type" to an otherwise definite expression (e.g., Friedel-Crafts catalyst) extends the scope of the expression so as to render it indefinite. Ex parte Copenhaver, 109 USPQ 118 (Bd. Pat. App. & Inter. 1955) and MPEP 2173.05(b).
For the purpose of the examination, the recitation of “raw-type meat substitute” in line 3 of claim 2 (emphasis added) is interpreted as “raw meat substitute”.
Claim 23 recites “wherein the lipid is, preferably selected from the group consisting of” at lines 1-2. The phrase "preferably" renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. Therefore, the scope of the claim is indefinite.
For the purpose of the examination, the recitation of “wherein the lipid is, preferably selected from the group consisting of” at lines 1-2 of claim 23 (emphasis added) is interpreted as “wherein the lipid is selected from the group consisting of”.
Claim Rejections - 35 USC § 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, 7, 8, 10-13, 20, 21, and 23-25 are rejected under 35 U.S.C. 103 as being unpatentable over Mellema et al. WO 2020173660 (hereinafter “Mellema”).
With respect to claim 1, Mellema teaches a method of preparing a meat replacer product (P13, L7-8).
Regarding the recitation of “for preparing a meat substitute” in the preamble of claim 1, it is noted that this recitation is a statement of intended use or field of use. If the body of a claim fully and intrinsically sets forth all of the limitations of the claimed invention, and the preamble merely states the purpose or intended use of the invention, then the preamble is not considered a limitation and is of no significance to the claim construction. See MPEP 2111.02.
Regarding the recitation of comprising a) preparing a binding emulsion comprising water, a lipid, and a binder comprising native patatin, wherein the weight ratio of lipid to water is 3 : 1 - 1 : 3; b) combining the binding emulsion with a denatured protein and optional ingredients; and c) shaping the meat substitute in claim 1, Mellema teaches preparing an emulsion comprising water, a binder comprising undenatured (native) patatin protein, and oil (fat phase) (step a), mixing the emulsion, texturized vegetable protein (TVP, denatured protein), and any optional ingredients (step b), and shaping the meat replacer product (step c). The ratio of oil (fat phase) to water is from about 0.01:1 to 6.3:1 (calculated from the product comprises 1-82% fat phase; the product comprises 20-85% of an aqueous phase and the aqueous phase is 65-98% water = 13% to about 83% water in the product; ratio of lipid to water = 1% fat phase/83% water to 82% fat phase/13% water) and encompasses the claimed range of 3:1-1:3 (or 0.33:1) (P1, L10-11; P5, L33; P7, L23-24; P8, L4 and 26-35; P10, L33-35; P11, L11-13; P12, L7-12 and 28-31; P13, L7-9; and P17-P18, L8). As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
With respect to claim 2, Mellema is relied upon for the teaching of the method of claim 1 as addressed above.
Regarding wherein the method further comprises a step of packaging the meat substitute after shaping, and wherein the meat substitute is a raw meat substitute, defined as a meat substitute which is not heated to a temperature above 60 °C prior to packaging in claim 2, Mellema teaches after shaping the mass into a dough, the meat replacer product may be packaged in a casing and heated to set it in one embodiment (P10, L33-35; P11, L11-14; and P17, L11-15).
Alternatively, Mellema teaches shaping the mass, heating the shaped product to 90⁰C, and packaging the heated product in another embodiment (P18, L7-11). Although Mellema does not expressly disclose heating the shaped product after packaging, it is noted that Mellema teaches a meat replacer product that is substantially similar to the claimed meat substitute, and the point at which the shaped product is heated in the method, i.e., before or after packaging the shaped meat substitute product, is not seen as critical (P4, L6-8). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to switch the order of performing the steps of the method, such as heating the shaped meat replacer product after packaging, in the method of Mellema with the expectation of successfully preparing a functional product. There would have been a reasonable expectation of success. Where the claimed and prior art products are produced by substantially identical processes, a prima facie case of obviousness has been established. To switch the order of performing process steps, i.e. the order of the addition of the ingredients into the final mixture, would be obvious absent any clear and convincing evidence and/or arguments to the contrary (MPEP 2144.04 [R-1]). “Selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results.”
With respect to claim 3, Mellema is relied upon for the teaching of the method of claim 1 as addressed above.
Regarding the recitation of wherein the binding emulsion comprises 15-30 wt.% native patatin in claim 3, Mellema teaches about 0.04 to 27% of undenatured (native) patatin protein (calculated from the product comprises a fat phase and 20-85% of an aqueous phase; the aqueous phase is 65-98% water and 2-35% of a combination of undenatured (native) patatin and legume seed protein = about 0.4-30% of the combination of undenatured (native) patatin and legume seed protein; the ratio of undenatured (native) patatin protein to legume seed protein is 9:1 to 1:9 or 10-90% of undenatured (native) patatin protein; percentage of undenatured (native) patatin = (10% of 0.4) to (90% of 30)) which overlaps the claimed range of 15-30 wt.% (P5, L33; P7, L23-24; P8, L4; P12, L28-31; and P17, L18-19). As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
With respect to claim 4, Mellema is relied upon for the teaching of the method of claim 1 as addressed above.
Regarding the recitation of wherein the weight ratio of lipid to water is 2 : 1 - 1:2 in claim 4, Mellema teaches the ratio of oil (fat phase) to water is from about 0.01:1 to 6.3:1 (calculated from the product comprises 1-82% fat phase; the product comprises 20-85% of an aqueous phase and the aqueous phase is 65-98% water = 13% to about 83% water in the product; ratio of lipid to water = 1% fat phase/83% water to 82% fat phase/13% water) and encompasses the claimed range of 2:1-1:2 (or 0.5:1) (P5, L33; P7, L23-24; P8, L4; and P12, L28-31). As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
With respect to claim 5, Mellema is relied upon for the teaching of the method of claim 1 as addressed above.
Regarding the recitation of wherein the binder comprises, as wt.% of the total protein, at least 35 wt.% native patatin in claim 5, Mellema teaches the binder comprises undenatured (native) patatin protein and pea protein at a ratio of 9:1 to 1:9 which is equivalent to 10-90% of undenatured (native) patatin protein in the binder based on the total protein (P1, L10-11; P12, L7-12; and P17, L18-19) and overlaps with the presently claimed range. As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
With respect to claim 7, Mellema is relied upon for the teaching of the method of claim 1 as addressed above.
Regarding the recitation of wherein the lipid is liquid in claim 7, Mellema teaches an oil is used as the fat phase (P8, L4; and P17, Table 5).
With respect to claim 8, Mellema is relied upon for the teaching of the method of claim 7 as addressed above.
Regarding the recitation of wherein the lipid is a plant oil, which may optionally have been hydrogenated in claim 8, Mellema teaches using rapeseed oil in the example (P17, Table 5).
With respect to claim 10, Mellema is relied upon for the teaching of the method of claim 1 as addressed above.
Regarding the recitation of wherein the denatured protein is a denatured plant protein comprising one or more types of protein derived from a tuber, cereal, nut, or legume in claim 10, Mellema teaches the texturized vegetable protein (TVP) may be derived from pea protein, lupin protein, rice protein, and/or wheat protein (P8, L26-35; and P17, Table 5).
With respect to claim 11, Mellema is relied upon for the teaching of the method of claim 1 as addressed above.
Regarding the recitation of wherein the denatured protein is a texturized plant protein in claim 11, Mellema teaches using a texturized vegetable protein (P8, L26-35; and P17, Table 5).
With respect to claim 12, Mellema is relied upon for the teaching of the method of claim 1 as addressed above.
Regarding the recitation of wherein said shaping results in a burger, meatball, sausage, minced meat, schnitzel, skewer, nugget, rib, filet, fish ball, or meat chunk in claim 12, Mellema teaches the meat replacer product is shaped into minced meat, burgers, meat balls, sausages, schnitzels, fish fingers, nuggets, and other shapes (P9, L2-6; P10, L33-35; and P11, L11-13).
With respect to claim 13, Mellema is relied upon for the teaching of the method of claim 1 as addressed above.
Regarding the recitation of wherein the meat substitute does not comprise fibers and/or wherein the meat substitute does not comprise a hydrocolloid in claim 13, Mellema teaches the product may preferably comprise fibers in one embodiment (P6, L34-35), and the reference is silent with respect to a hydrocolloid. Therefore, Mellema successfully meets the claimed limitation.
With respect to claim 20, Mellema is relied upon for the teaching of the method of claim 1 as addressed above.
Regarding the recitation of wherein the weight ratio of lipid to water is 1.5 : 1 - 1:1.5 in claim 20, Mellema teaches the ratio of oil (fat phase) to water is from about 0.01:1 to 6.3:1 (calculated from the product comprises 1-82% fat phase; the product comprises 20-85% of an aqueous phase and the aqueous phase is 65-98% water = 13% to about 83% water in the product; ratio of lipid to water = 1% fat phase/83% water to 82% fat phase/13% water) and encompasses the claimed range of 1.5:1-1:1.5 (or 0.67:1) (P5, L33; P7, L23-24; P8, L4; and P12, L28-31). As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
With respect to claim 21, Mellema is relied upon for the teaching of the method of claim 1 as addressed above.
Regarding the recitation of wherein the binder comprises, as wt.% of the total protein, at least 75 wt.% native patatin in claim 21, Mellema teaches the binder comprises undenatured (native) patatin protein and pea protein at a ratio of 9:1 to 1:9 which is equivalent to 10-90% of undenatured (native) patatin protein in the binder based on the total protein (P1, L10-11; P12, L7-12; and P17, L18-19) and overlaps with the presently claimed range. As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
With respect to claim 23, Mellema is relied upon for the teaching of the method of claim 7 as addressed above.
Regarding wherein the lipid is selected from the group consisting of corn oil, soybean oil, rapeseed oil, sunflower oil, grape seed oil, peanut oil, sesame oil, olive oil, shea butter, cocoa butter, and ricebran oil, which may optionally have been hydrongenated in claim 23, Mellema teaches rapeseed oil was used in the example (P17, Table 5).
With respect to claim 24, Mellema is relied upon for the teaching of the method of claim 1 as addressed above.
Regarding wherein the denatured protein is a denatured plant protein comprising one or more types of protein derived from a tuber, cereal, nut or legume, which protein is selected from the group consisting of soy protein, pea protein, wheat protein, wheat gluten, potato protein, faba bean protein, mungbean protein, hemp seed protein, mushroom protein, sesame seed protein, sweet potato protein, chick pea protein, lentil protein, oat protein, and spelt protein in claim 24, Mellema teaches the texturized vegetable protein (TVP) may be derived from pea protein and/or wheat protein (P8, L26-35; and P17, Table 5).
With respect to claim 25, Mellema is relied upon for the teaching of the method of claim 1 as addressed above.
Regarding the recitation of wherein the denatured protein is a hydrated texturized plant protein in claim 25, Mellema teaches the texturized vegetable protein (TVP) is hydrated (P8, L26-35; and P17, Table 5).
Claims 6 and 22 are rejected under 35 U.S.C. 103 as being unpatentable over Mellema et al. WO 2020173660 (hereinafter “Mellema”) as applied to claim 1 above, and as evidenced by Cristea et al., “Influence of TiO2 as Nano Additive in Rapeseed Oil” (hereinafter “Cristea”).
With respect to claim 6, Mellema is relied upon for the teaching of the method of claim 1 as addressed above.
Regarding the recitation of wherein the lipid is defined as glycerol moieties substituted with one or more fatty acids, wherein at least 94 wt.% of the fatty acids has a fatty acid chain length of C16 or more, relative to the total weight of the fatty acids, and/or wherein the total of C12-C16 fatty acids is less than 15 wt.%, relative to the total weight of the fatty acids in claim 6, Mellema teaches rapeseed oil was used (P17, Table 5). Evidence is provided by Cristea. Cristea is merely used to show the fatty acid composition of rapeseed oil, which typically contains 0.05% myristic acid (C14:0), 4.84% palmitic acid (C16:0), 0.06% palmitoleic acid (C16:1), 0.14% heptadecanoic acid (C17:0), 0.14% stearic acid (C18:0), 62.73% oleic acid (C18:1), 22.4% linoleic acid (C18:2), 7.50% linolenic acid (C18:3), 0.50% arachidic acid (C20:0), 1.25% eicosenoic acid (C20:1), and 0.30% behenic acid (C22:0) based on the weight of the fatty acid composition (P3, Table 1). Thus, Cristea teaches 99.86% of the fatty acids has a fatty acid chain length of C16 or more relative to the total weight of the fatty acids (calculated from 4.84% palmitic acid (C16:0) + 0.06% palmitoleic acid (C16:1) + 0.14% heptadecanoic acid (C17:0) + 0.14% stearic acid (C18:0) + 62.73% oleic acid (C18:1) + 22.4% linoleic acid (C18:2) + 7.50% linolenic acid (C18:3) + 0.50% arachidic acid (C20:0) + 1.25% eicosenoic acid (C20:1) + 0.30% behenic acid (C22:0)) and the total of C12-C16 fatty acids is 4.95% (calculated from 0.05% myristic acid (C14:0) + 4.84% palmitic acid (C16:0) + 0.06% palmitoleic acid (C16:1)), and Mellema, as evidenced by Cristea, successfully meets the claimed limitation.
With respect to claim 22, Mellema is relied upon for the teaching of the method of claim 1 as addressed above.
Regarding the recitation of wherein the lipid is defined as glycerol moieties substituted with one or more fatty acids, wherein at least 95 wt.% of the fatty acids has a fatty acid chain length of C16 or more, relative to the total weight of the fatty acids, and/or wherein the total of C12-C16 fatty acids is less than 15 wt.%, relative to the total weight of the fatty acids in claim 22, Mellema teaches rapeseed oil was used (P17, Table 5). Evidence is provided by Cristea. Cristea is merely used to show the fatty acid composition of rapeseed oil, which typically contains 0.05% myristic acid (C14:0), 4.84% palmitic acid (C16:0), 0.06% palmitoleic acid (C16:1), 0.14% heptadecanoic acid (C17:0), 0.14% stearic acid (C18:0), 62.73% oleic acid (C18:1), 22.4% linoleic acid (C18:2), 7.50% linolenic acid (C18:3), 0.50% arachidic acid (C20:0), 1.25% eicosenoic acid (C20:1), and 0.30% behenic acid (C22:0) based on the weight of the fatty acid composition (P3, Table 1). Thus, Cristea teaches 99.86% of the fatty acids has a fatty acid chain length of C16 or more relative to the total weight of the fatty acids (calculated from 4.84% palmitic acid (C16:0) + 0.06% palmitoleic acid (C16:1) + 0.14% heptadecanoic acid (C17:0) + 0.14% stearic acid (C18:0) + 62.73% oleic acid (C18:1) + 22.4% linoleic acid (C18:2) + 7.50% linolenic acid (C18:3) + 0.50% arachidic acid (C20:0) + 1.25% eicosenoic acid (C20:1) + 0.30% behenic acid (C22:0)) and the total of C12-C16 fatty acids is 4.95% (calculated from 0.05% myristic acid (C14:0) + 4.84% palmitic acid (C16:0) + 0.06% palmitoleic acid (C16:1)), and Mellema, as evidenced by Cristea, successfully meets the claimed limitation.
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Mellema et al. WO 2020173660 (hereinafter “Mellema”) as applied to claim 1 above, and as evidenced by Flickinger et al., “Nutritional Characteristics of DAG Oil” (hereinafter “Flickinger”).
With respect to claim 9, Mellema is relied upon for the teaching of the method of claim 1 as addressed above.
Regarding the recitation of wherein the lipid comprises less than 18 mmol per kg lipid of free fatty acids, and/or wherein the total of diacylglycerols and monoacylglycerols, relative to the total lipid, is less than 10 wt.% in claim 9, Mellema teaches rapeseed oil was used (P17, Table 5). Evidence is provided by Flickinger. Flickinger is merely used to show the content of monoacylglycerols (0.1% MAG) and diacylglycerols (0.8% DAG) in rapeseed oil (P129, Table 1). Thus, Flickinger teaches 0.9% of total diacylglycerols and monoacylglycerols relative to the total lipid (rapeseed oil) (calculated from 0.1% MAG + 0.8% DAG), and Mellema, as evidenced by Flickinger, successfully meets the claimed limitation.
Conclusion
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/T.L.M/Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793
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