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 (claim 1-12 and 21) in the reply filed on 20 November 2025 is acknowledged. The traversal is on the ground(s) that Walthers does not teach two types of extrusion piecers are not produced in the same run. This is not found persuasive in view of the new grounds of rejection below.
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 1-2, 5-6, 8-9, and 21 are rejected under 35 U.S.C. 103 as being unpatentable over Hayes et al. (herein referred to as Hayes, US 3870805 A)
With regard to Claim 1, Hayes teaches a process for forming protein-rich extruded products (abstract, Hayes reads such that extrudates prepared from defatted soybean meals are a suitable source material in providing the texturized protein compositions). Hayes teaches extruding a plant-based source material comprising a protein content and a fat content to form a plurality of extrudates (col 3 lines 50-60, col 6 lines 40-50). More specifically, Hayes teaches the extrudates are protein-rich and have a protein concentration greater than 50wt% (Col 9 lines 30-39, Hayes reads such that the extrudate has an enriched protein content of at least 60% of its dry weight).
In examples 1 and 3, Hayes teaches the extruding starts with feeding the starting material a moisture content of the mixture ranging from about 15% to about 60% by wight of the total mixture (col 18 lines 45-47). and water, at a ratio of approximately 17% starting material to water (Col 22 lines 36-39, see applicant specification paragraph 38). Hayes teaches the screw is operated at 350 rpm (Col 22 lines 40-42) and in a single die extrusion at a temperature of 215℉ (col 23 lines 40-42, ~101℃) Hayes teaches the extruding can be done at a temperature of 200℉ to about 400℉ to form a hot fluid homogeneous mass of said proteinaceous material (Col 18 lines 15-20, approximately 93℃ to about 204℃). In addition, Hayes teaches substantially the same composition. Hayes the source material comprises a plant-based protein source comprising a legume (Col 4 lines 40-44, Hayes teaches the use of soybean meal) and the plant based source material comprises a lipid (i.e. fat) content ranging from about 0.5 to about 5% by weight ( Col 6 lines 44-46) as claimed instant claims 6 and 8. Therefore, Hayes substantially teaches the same extrusion process and substantially the same material as shown in applicants specification example 1 ([0054]). As a result, because Hayes teaches substantially the same process and composition, one with ordinary skill in the art would recognize that the process would produce substantially the same product. See MPEP 2112.01(I) Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977).
Continuing, after extrusion, Hayes teaches separating the plurality of protein-rich extrudates from their water soluble constitutes (col 4 lines 25-30).
It would have been obvious to one with ordinary skill in the art that extrudate pieces with a high content of water soluble constitute would inherently have a low or no concentration of protein which would include embodiments wherein the concentration of protein is less than 10% by weight as instantly claimed. Therefore by separating out the water soluble constitutes, or extrudates with a high concentration of water soluble constitutes, one would inherently be separating out the extrudates with a low or no concentration of protein. This would be advantageous because Hayes teaches removal of the water-soluble constituents provides fibrous protein compositions having improved organoleptic and textural characteristics. (col 9 lines 7-9). Hayes teaches superior texturized protein compositions are achieved when substantially all of the water-solubles are extracted from the extrudates arid the texturized protein composition contains from about 70 to about 85% by weight protein. (Col 9 lines 34-39)
Therefore, it would have been obvious to one with ordinary skill in the art to utilize the method taught by Hayes to separate out the protein-rich extrudates from the extrudates with a high concentration of water soluble constitutes (i.e., non-protein extrudates)
With regard to Claim 2, Hayes teaches the protein-rich extrudates have a protein concentration of at least 55wt% (Col 9 lines 30-39, Hayes reads such that the extrudate has an enriched protein content of at least 60% of its dry weight). See MPEP 2144.05(I) In the case where the claimed ranges "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);
With regard to Claim 5, Hayes teaches separating the plurality of protein-rich extrudates from their water soluble constitutes (col 4 lines 25-30). Hayes teaches solubilization of the water soluble constituents is generally accomplished by dissolving the water-soluble constituents from the cellular walls via the communicating pores and channels of the extrudate with an aqueous medium to provide a protein enriched extrudate and an aqueous miscella of water-soluble constituents. The aqueous miscella is then separated from the extrudate solids to provide a protein enriched extrudate product with at least a major portion of the water-soluble constituents initially therein being removed (col 4 lines 15-25).
Therefore, Hayes teaches separation done by a water-based separation technique.
With regard to Claim 6, Hayes teaches the source material comprises a plant-based protein source comprising a legume (Col 4 lines 40-44, Hayes teaches the use of soybean meal).
With regard to Claims 8 and 21, Hayes teaches the plant based source material comprises a lipid (i.e. fat) content ranging from about 0.5 to about 5% by weight ( Col 6 lines 44-46). See MPEP 2144.05(I) a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985).
With regard to Claim 9, Hayes teaches the water-soluble constituents of soybean meals are primarily composed of polysaccharides or di-, tri- and tetrasaccharide sugars (Col 6 lines 46-48). Hayes teaches the plant-based source material is soybean meal and it is well known that soybean meal contains starch. Therefore, one can inherently assume that because starch is a polysaccharide and there are polysaccharides in the water-soluble constituents of soybean meals that starch is inherently present. See MPEP 2112.01(II) Products of identical chemical composition can not have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable.
Therefore the non-protein extrudates taught by Hayes would inherently have starch.
Claims 3 and 4 are rejected under 35 U.S.C. 103 as being unpatentable over Hayes et al. (herein referred to as Hayes, US 3870805 A) in view of Tanaka (US 20130081982 A1).
With regard to Claims 3 and 4, Hayes is silent to separating the extrudates by color.
Tanaka teaches an apparatus for sorting objects by color. ([0002]).
It would have been well within the ability of one of ordinary skill in the art to separate the fractions out based on a color difference, however Tanaka teaches that it is known in the art to separate out different articles by color. Therefore, It would be well within the ability of one of ordinary skill in the art to separate based on color as it is merely apply a known technique to a known method for an improvement to yield predictable results. See MPEP 2143(A) The rationale to support a conclusion that the claim would have been obvious is that all the claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions, and the combination yielded nothing more than predictable results to one of ordinary skill in the art. KSR, 550 U.S. at 416, 82 USPQ2d at 1395; B/E Aerospace, Inc. v. C&D Zodiac, Inc., 962 F.3d 1373, 1379, 2020 USPQ2d 10706 (Fed. Cir. 2020)
Claims 7 and 11 are rejected under 35 U.S.C. 103 as being unpatentable over Hayes et al. (herein referred to as Hayes, US 3870805 A) in view of Dupart et al. (herein referred to as Dupart, WO 2017093538 A1).
With regard to Claim 7, Hayes is silent to the source material comprising oat.
Dupart teaches extruded oat-based products, and their process of manufacture (abstract). Dupart teaches oat is generally considered as a health food, owing to its high content in beta-glucan. Dupart teaches that regular consumption of beta-glucans contributes to maintenance of normal blood cholesterol concentrations (page 1 lines12-15). Dupart teaches the cooked-extruded oat-based pieces are quite versatile in their final use (page 5 lines 6-7).
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Hayes to use oat as the source material as taught by Dupart because oat is high in beta-glucan which contribute to the maintenance of normal blood cholesterol concentrations and the extruded oat-based pieced are quite versatile in their final use.
With regard to Claim 11, Hayes is silent to adding an antioxidant to the plant-based source material prior to extruding.
Dupart teaches adding an antioxidant compound to the plant based source material prior to extruding (page 4 lines 18-19). Dupart teaches the antioxidant is an important ingredient as it improves shelf-life by reducing hydrolytic rancidity and fat oxidation (page 9 lines 23-24).
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Hayes to include an antioxidant prior to extruding as taught by Dupart to improve the products shelf-life by reducing hydrolytic rancidity and fat oxidation.
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Hayes et al. (herein referred to as Hayes, US 3870805 A) in view of Walther et al. (herein referred to as Walther, US 20160205986 A1)
With regard to Claim 10, Hayes is silent to adding a fat additive to a precursor plant-based material.
Walther teaches extruded protein products and methods for producing an extruded protein product (abstract). Walther teaches adding oil to a precursor plant-based material ([0023], [0064]). Walther teaches incorporating oil into a protein matrix composition results in extruded pieces that have a structure that includes granules of protein loosely packed in a matrix that includes a protein matrix disruptive ingredient that imparts a desirable texture ([0078]).
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Hayes by adding an oil (i.e. fat additive) to the precursor plant-based source material as taught by Walther to impart a desirable texture.
Claim 12 is rejected under 35 U.S.C. 103 as being unpatentable over Hayes et al. (herein referred to as Hayes, US 3870805 A) in view of Fang et al. (herein referred to as Fang, “Effects of specific mechanical energy on soy protein aggregation during extrusion process studied by size exclusion chromatography coupled with multi-angle laser light scattering”)
With regard to Claim 12, Hayes teaches the extruding is done at a temperature of 200℉ to about 400℉ (Col 18 lines 15-20, approximately 93℃ to about 204℃) and a moisture content of the mixture ranging from about 15% to about 60% by wight of the total mixture (col 18 lines 45-47).
However, Hayes is silent to the specific mechanical energy.
Fang teaches the effects of specific mechanical energy (SME) on soy protein aggregation during extrusion process (abstract). Fang teaches increasing the SME from 839.81 to 1277.01 kJ/kg (~233 Wh/kg to ~354 Wh/kg). Fang teaches in increase in SME could enhance the extent of breakdown of protein aggregates (abstract).
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Hayes to utilize a SME from 839.81 to 1277.01 kJ/kg (~233 Wh/kg to ~354 Wh/kg) to enhance the extent of breakdown of protein aggregates.
Conclusion
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/K.I.D./Examiner, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792