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 .
Claim Rejections - 35 USC § 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.
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) in view of Brown et al (herein referred to as Brown, CN 1976596 A) and Martin et al. (herein referred to as Martin, “Texture, sensory properties and functionality of extruded snacks from pulses and pseudocereal proteins”).
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 weight 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℃ thus hayes reads on the process being in one extrusion step) 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 thus Hayes reads on the limitation of a fat content of at least 4%) as claimed instant claims 1, 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).
Further, Hayes teaches texturized protein compositions of a predetermined and appropriate size are selectively employed depending upon the particular meat cut to be simulated (Col 17 lines 10-13).With regard to size, Hayes teaches the cross-sectional diameter of the extrudate can vary considerably with the desired size thereof being effectively controlled by subsequent processing conditions (Col 7 lines 19-22). However, Hayes is silent to dry separation techniques to separate protein-rich extrudates from the plurality of non-protein extrudates. Per applicant’s specification paragraph ([0046]), dry separation includes separating on the basis of surface texture, size, shape, hardness, fragility, and/or any other suitable parameter.
Brown teaches manufacturing protein extrudates and the use of such protein extrudates as functional food ingredients ([0001]). Brown teaches dry separating the extrudates using the desired size sieve ([0096]).
Thus, Brown impart reasoning for obviousness because the teaching shows that dry separating extrudates based on their size was known for such a thing to have been successfully achieved and published at the time of filing, which means it was within the general skill of one with ordinary skill in the art to dry separating extrudates based on their size because it would be obvious to one of skill in the art to do such a thing on the basis of its suitability for a similar intended use. See MPEP 2144.07 that discussed that when the prior art recognizes something is suitable for a similar intended use/purpose, such a thing is obvious.
However, the combination of Hayes and Brown is silent to the protein-rich and non-protein extrudates being different sizes.
Martin teaches protein-rich fractions of pulses and pseudocereals are high-value ingredients for the production of extruded snacks. Martin teaches the impact of a combination of pulses and pseudocereals on the physical and sensory qualities of extruded snacks (Background). Martin teaches high protein extrudates are smaller in diameter and denser compared to samples with lower protein contents (Piece density and specific hardness).
Therefore, Martin clearly teaches that protein content has a direct impact on the size of extrudates. It would have been obvious to one with ordinary skill in the art to modify the combination of Hayes and Brown in view of Martin to dry separate protein-rich extrudates from non-protein extrudates because Martin teaches the size of extrudates is related to the protein content and Brown teaches used size as a dry separating technique for extrudates. In addition Hayes teaches the size of the extrudates is directly related to the desired final product and the character and nature of the expanded extrudate employed has a pronounced effect upon the textural and organoleptic properties of the product (col 4 line 67 – col 5 lines 3). Therefore the size and protein content are critical to the final desired product. Thus dry separating the extrudates based on size, which directly relates to the protein content, will result in the product with the desired textural and organoleptic properties.
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 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.
Claim 4 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 Brown et al (herein referred to as Brown, CN 1976596 A) and Martin et al. (herein referred to as Martin, “Texture, sensory properties and functionality of extruded snacks from pulses and pseudocereal proteins”).
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 Brown et al (herein referred to as Brown, CN 1976596 A) Martin et al. (herein referred to as Martin, “Texture, sensory properties and functionality of extruded snacks from pulses and pseudocereal proteins”) and 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 Brown et al (herein referred to as Brown, CN 1976596 A) Martin et al. (herein referred to as Martin, “Texture, sensory properties and functionality of extruded snacks from pulses and pseudocereal proteins”). and 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 Brown et al (herein referred to as Brown, CN 1976596 A) Martin et al. (herein referred to as Martin, “Texture, sensory properties and functionality of extruded snacks from pulses and pseudocereal proteins”) and 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.
Response to Arguments
Applicant's arguments filed 13 May 2026 have been fully considered but they are not persuasive.
Applicant argues that Hayes teaches a fundamentally different process. Applicant argues Hayes does not teach or suggest that the extrusion step itself produces two distinct types of extrudate pieces have different protein concentrations. However, in applicant’s remarks on page 3 applicant states “this phase separation during extrusion is achieved through a specific combination of low moisture content and adequate fat content in the source material”. As described above in the rejection, Hayes substantially teaches the same extrusion process and substantially the same material as shown in applicants specification example 1 (Hayes [0054]). Thus, one with ordinary skill in the art would recognize that Hayes teaches the specific combination of elements that is necessary to achieve the described phase separation. As a result Hayes would inherently produce substantially the same product. Therefore, applicant’s argument is not found to be persuasive.
With regard to the moisture content, Hayes teaches in examples 1 and 3 water at a ratio of approximately 17% starting material to water (Col 22 lines 36-39). One with ordinary skill in the art would recognize that the ratio of starting material to water would be equivalent to the moisture content. In addition, prior to extrusion, Hayes teaches for optimum results, the moisture content of the mixture should be within the range of 18% to 40% (Col 18 lines 47-48). The mixture is then fed directly into the extruder (Col 19 lines 12-13). With regard to moisture during extrusion, Hayes teaches the expanded extrudates employed herein are prepared under extrusion process conditions whereby the appropriate porosity, hydration, water-soluble extraction characteristics as well as fiberous orientation of the resultant proteinaceous extrudate are achieved (Col 5 lines 38-41). Thus, Hayes teaches substantially the same moisture content as claimed. Therefore, Thus, applicant’s arguments with regard to the moisture content are not found to be persuasive.
In response to applicant's argument that Hayes utilizes a Wenger X-25 extruder while the applicants invention utilizes an APV Baker MPF 19/25, it is noted that the type of extruder upon which applicant relies are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). In addition, the applicant merely states that the twin-screw extruders are “generally more effective at generating the mechanical energy necessary to enable the protein separation required by the claimed invention.” However, applicant provides no data to further support their claim. Per MPEP 716.02(b)(I) which states Ex parte Gelles, 22 USPQ2d 1318, 1319 (Bd. Pat. App. & Inter. 1992) (Mere conclusions in appellants’ brief that the claimed polymer had an unexpectedly increased impact strength "are not entitled to the weight of conclusions accompanying the evidence, either in the specification or in a declaration."); Therefore, the lack of data further supports that applicant’s argument is not found to be persuasive.
Next, applicant argues that obtaining visibly distinct fractions directly at the extruder outlet is not a typical outcome of a plant-flour extrusion. Applicant’s statement that this phenomena is not a typical outcome is insufficient to show that this is an unexpected result. See MPEP 716.02(b)(I) The evidence relied upon should establish "that the differences in results are in fact unexpected and unobvious and of both statistical and practical significance." Ex parte Gelles, 22 USPQ2d 1318, 1319 (Bd. Pat. App. & Inter. 1992) (Mere conclusions in appellants’ brief that the claimed polymer had an unexpectedly increased impact strength "are not entitled to the weight of conclusions accompanying the evidence, either in the specification or in a declaration."). Therefore applicants argument is not found to be persuasive.
With regard to applicant’s arguments is reference to the dry separation technique. The combination of Brown and Martin now read on the newly amended limitations.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/K.I.D./Examiner, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792
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