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 .
Restriction/Election
Applicant’s election without traverse of Group 1 in the reply filed on 1/9/2026
acknowledged. Claims 45-48 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim.
Note that Claims(s) 51 and 62 depend from Claim 32, and are examined herein. Additionally, note that Claim(s) 52 and 54 depend from Claim 1, and are additionally examined herein.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1, 2, 9, 32, and 33 are rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter. The claim(s) does/do not fall within at least one of the four categories of patent eligible subject matter because the Claims encompass naturally occurring compositions. Claim(s) 1, 2, and 32 are directed toward a combination of mycelium mass, which is a natural product, in water. Claim(s) 9 and 33 are directed towards mycelium mass in water, wherein the phosphorous, calcium, and zinc content lies within the naturally occurring phosphorous, calcium, and zinc content of mycelium mass (see below as discussed in regards to Cohen, Claims 9 and 33).
Note that the preamble of an “edible non-animal dairy substitute product” is directed towards intended use, and does not further limit the claim.
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 16 and 51 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 16 recites the limitation of “an edible plant, or algae-based fat component, a fat component derived from fungi or yeast, in a range of up to 60 wt%”. It is unclear whether an “edible plant”, “algae-based fat component”, and “a fat component derived from fungi or yeast” are intended to be members of a Markush grouping (or, alternatively, whether an “edible plant”, “algae-based fat component”, “a fat component derived from fungi”, or “yeast” are intended to be members of a Markush grouping) or whether the limitation of an “edible plant” is intended to modify a “fat component”. Additionally, it is unclear whether the limitation of “in a range of up to 60 wt%” is intended to apply only to the fat component derived from fungi or yeast.
For the purposes of examination, the limitation is interpreted as an edible plant, an algae-based fat component, or a fat component derived from fungi or yeast in a range of up to 60 wt%, where the compositional limitation applies only to the fat component derived from fungi or yeast.
Claim 51 recites a method with no active method step.
Claim Rejections - 35 USC § 102
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.
Claim(s) 1, 22, 32, 33, 52, and 54 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Nunes (WO 2011/012933 A1).
Regarding Claim 1, Nunes teaches the use of mushroom mycelium [2] for a food [6]. Given that Nunes teaches the use of, e.g. Pleurotus ostreatus [25], which is taught by the instant Specification (Page 11, Line 32) as a preferred embodiment, the product of Nunes is interpreted to meet the insoluble fiber content as claimed. Note that the preamble of a “dairy substitute product” is directed towards intended use and does not further limit the claim.
Regarding the composition limitations, given the range of the claimed compositions, the teaching of Nunes is interpreted to meet the composition limitations.
Regarding Claim 2, given that Nunes teaches the use of, e.g. Pleurotus ostreatus [25], which is taught by the instant Specification (Page 11, Line 32) as a preferred embodiment, the product of Nunes is interpreted to meet the protein content as claimed. Note that parts (a), (b), and (c) of the claim are claimed in the alternative (“and/or”).
Regarding Claim 22, Nunes teaches the product as discussed above in regards to Claim 1. Additionally, given that Nunes teaches the use of, e.g. Pleurotus ostreatus [25], which is taught by the instant Specification (Page 11, Line 32) as a preferred embodiment, the product of Nunes is interpreted to meet the insoluble fiber and fat content as claimed.
Regarding Claim 32, given that Nunes teaches the use of, e.g. Pleurotus ostreatus [25], which is taught by the instant Specification (Page 11, Line 32) as a preferred embodiment, the product of Nunes is interpreted to meet the insoluble fiber content as claimed. Note that the limitation of “derived from submerged fermentation” is directed towards a product-by-process. No difference is expected between a mushroom mycelium derived from submerged fermentation and another mycelium. See MPEP 2113(I).
Regarding Claim 33, Nunes teaches the product as discussed above in regards to Claim 1. Additionally, given that Nunes teaches the use of, e.g. Pleurotus ostreatus [25], which is taught by the instant Specification (Page 11, Line 32) as a preferred embodiment, the product of Nunes is interpreted to meet the insoluble fiber, phosphorous, calcium, and fat content as claimed.
Regarding Claim 52 and 54, Nunes teaches the use of, e.g. Pleurotus ostreatus [25], which lies within Basidiomycota.
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 16, 20, 51, and 58 are rejected under 35 U.S.C. 103 as being unpatentable over Nunes in view of Finnigan (US 7635492 B2).
Regarding Claim 16, Nunes teaches the product as discussed above in regards to Claim 1 but does not discuss the addition of flavor or color.
Regarding part a), Finnigan teaches the use of flavor and color (e.g. Column 20, Table 13 and Lines 20-21). Regarding part b), Finnigan teaches the addition of 15 wt% of a fruit, which is an edible plant (Column 15, Lines 15-16). Finnegan teaches that such ingredients provide for “acceptable” quality (Column 15, Line 26 and Column 20, Line 61). Therefore, it would have been obvious to one having ordinary skill in the art before the filing date of the claimed invention to modify Nunes to utilize the claimed ingredients as taught by Finnigan. One would have been motivated to make such a modification to make a food product with acceptable quality.
Regarding Claim 20, note that since the limitations of Claim 16 has been met with regards to the use of an edible plant, the limitations of Claim 20 have also been met. Regardless, Finnigan teaches the use of <2.5 wt% of an oil (Column 8, Line 2) such as vegetable oil (Column 7, Line 60) or palm oil (Column 7, Line 45) in a milk product (Column 7, Line 48).
Regarding Claim 51, Nunes teaches the use of mushroom mycelium in food [7] but does not specifically discuss a “non-animal dairy substitute product”.
Finnigan teaches the use of mushroom mycelium in, e.g. a non-dairy milk drink (Column 8, Lines 46-47). Finnigan teaches that such products provide positive health benefits (Column 1, Lines 41-42). Therefore, it would have been obvious to one having ordinary skill in the art before the filing date of the claimed invention to utilize Nunes in a non-dairy milk drink as taught by Finnigan. One would have been motivated to make such a modification since Finnigan teaches that such drinks have health benefits.
Regarding Claim 58, modified Finnigan teaches the dairy substitute product as discussed above in regards to Claim 1. Modified Finnigan does not address the method of determining insoluble fiber content. However, it would have been obvious to have utilized any known method to determine the insoluble fiber content, including the method claimed.
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Nunes as applied to Claim 1, above, in view of Cohen (“Chemical Composition and Nutritional and Medicinal Value of Fruit Bodies and Submerged Cultured Mycelia of Culinary-Medicinal Higher Basidiomycetes Mushrooms “, DOI: 10.1615/IntJMedMushr.v16.i3.80, reference is made to the provided excerpt, 2014).
Regarding Claim 9, Nunes teaches the product as discussed above in regards to Claim 1 but does not discuss the amount of calcium, zinc, or phosphorous in the mycelium.
Cohen teaches that a composition comprising mushroom mycelium has 224-7307 mg/kg of calcium, 1091-11676 mg/kg of phosphorous, and 5-97 mg/kg of zinc (Page 5). Cohen teaches that such levels are appropriate for use in a well-balanced diet (Page 6). Note that the mycelium of Cohen, utilized in the composition of Finnigan at (e.g.) 10 wt%, yields a dairy product comprising 2.24-73.07 mg of calcium (22.4* 10% to 730.7*10%), 10.91-116.8 mg of phosphorous (109.1 * 10% to 1,167.6 * 10%), and .05-.97 mg of zinc (.5*10% to 9.7* 10%) per 100 grams of dairy substitute product.
Therefore, it would have been obvious to one of ordinary skill in the art before the filing date of the claimed invention to utilize a mushroom mycelium with the claimed amounts of calcium, phosphorous, and zinc in the product of Finnigan. One would have been motivated to make such a modification since Cohen teaches that such levels are appropriate for use in a well-balanced diet.
Claims 51, 59, 61, and 62 are rejected under 35 U.S.C. 103 as being unpatentable over Nunes in view of Cohen.
Regarding Claim 51, Nunes teaches dairy substitute product such as a milk drink, which contains no dairy (Column 7, Lines 55-58).
Regarding Claim 59 and 62, Nunes teaches the use of Agaricus bispores [43], which lies in the Order Agaricales as claimed.
Regarding Claim 61, modified Nunes does not address the method of determining insoluble fiber content. However, it would have been obvious to have utilized any known method to determine the insoluble fiber content, including the method claimed.
Claims 60 and 63 are rejected under 35 U.S.C. 103 as being unpatentable over Nunes as applied to Claim 32, above, in view of Liu (“Artificial cultivation of true morels: current state, issues, and perspectives”, DOI: 10.1080/07388551.2017.1333082)
Regarding Claims 60, 63, and 64, Nunes teaches the mycelium as discussed above in regards to Claim 32, and teaches the use of any appropriate mushroom type [43], but does not specifically address the use of Morchella rufobrunnea mycelium.
Liu teaches that Morchelal rufobrunnea is cultivated commercially food use (Abstract).
Therefore, it would have been obvious to one of ordinary skill in the art before the filing date of the claimed invention to utilize Morchella rufobrunnea as the mycelium of Nunes. One would have been motivated to make such a modification since Liu teaches that Morchella rufobrunnea is cultivated commercially and therefore can be used as a source of mycelium.
Claim 64 is rejected under 35 U.S.C. 103 as being unpatentable over Nunes as applied to Claim 32, above, in view of Liu and Garuba (“Influence of substrates on the nutritional quality of Pleurotus pulmonarius and Pleurotus ostreatus “, https://cjs.sljol.info/articles/10.4038/cjs.v46i1.7419, January 2017)
Regarding Claim 64, Nunes teaches the mycelium as discussed above in regards to Claim 32, and teaches the use of any appropriate mushroom type [43], but does not specifically address the use of Morchella rufobrunnea mycelium.
Liu teaches that Morchella rufobrunnea is cultivated commercially food use (Abstract). Garuba teaches that Pleurotus pulmonarius is utilized for food and low cost to grow (Introduction, Paragraph 1).
Therefore, it would have been obvious to one of ordinary skill in the art before the filing date of the claimed invention to utilize Morchella rufobrunnea and Pleurotus pulmonarius as the mycelium of Nunes. One would have been motivated to make such a modification since Liu teaches that Morchella rufobrunnea is cultivated commercially and therefore can be used as a source of mycelium, and Garuba teaches that Pleurotus pulmonarius is low cost to grow.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DEBORAH LIU whose telephone number is (571)270-5685. The examiner can normally be reached 12-8 Eastern Time.
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/D.L./ Examiner, Art Unit 1791
/Nikki H. Dees/ Supervisory Patent Examiner, Art Unit 1791
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