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, 4-10, 21, 24-25, and 28 are rejected under 35 U.S.C. 103 as being unpatentable over Nahmias et al (herein referred to as Nahmias, US 20210395690 A1) in view of Ajami et al. (herein referred to as Ajami, US 20170105438 A1).
With regard to Claim 1, Nahmias teaches enriched population of connective tissue cells that are capable of anchorage-independent growth and compositions comprising those cells ([0005]). Nahmias teaches the connective tissue cells are capable of producing cultured meat ([0018]). Nahmias teaches the cells are non-human animal cells such as fibroblast or myoblast cells ([0046]-[0047], [0070]). Nahmias teaches the cells may be contained in an emulsion mixture ([0081]). Nahmias teaches the cultured meat comprises at least 5, 10, 15, 20, 25, 30, 35, 40, 45 or 50% cells ([0068]). 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); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Although Nahmias teaches the cells within an emulsion mixture ([0081]), the reference is silent to the emulsion mixture being created from emulsifying an oil, a hydrocolloid, and a the hydrated first cell mass.
Ajami teaches food products that have structures, textures, and other properties comparable to those of animal meat, and that may therefore serve as substitutes for animal meat. Also provided are processes for production of such ground meat-like food products (abstract). Ajami teaches forming an emulsion containing an oil and a hydrocolloid ([0158], [0162], [0164]). Ajami teaches the emulsion can include animal ingredients, cell structures and microbial biomass cell ([0026], [0190]). Ajami teaches the compositions of the emulsions are such that the meat-like food products have meat-like juiciness ([0170])
Therefore, it would have been obvious to one with ordinary skill in the art to modify the emulsion mixture taught by Nahmias, which includes a first hydrated cell mass, in view of the process taught by Ajami to produce the emulsion mixture by emulsifying an oil and hydrocolloid with the first hydrated cell mass taught by Nahmias so the resulting meat-like food products provided herein have meat-like juiciness. Thus the combination of Nahmias and Ajami read on Step A of the claimed process.
Further, Nahmias is silent to mixing with the emulsion mixture a hydrated textured subcomponent comprising a hydration mixture mixed with a textured protein to produce a cell-based food product.
Continuing, Ajami teaches adding a hydration mixture to a textured protein ([0106], Example 2, [0276]), thus forming a hydrated textured subcomponent and further mixing the emulsion mixture with the hydrates textured subcomponent (Example 5 [0298]-[0299]). Ajami teaches that the textured protein is responsible for some binding of water via hydrophilic interactions ([0106]).
Therefore, it would have been obvious to one with ordinary skill in the art to modify Nahmias to includes adding a hydrated texture subcomponent to the emulsion because the textured protein in the subcomponent binds water and Ajami teaches the resulting food products have structures, textures, and other properties comparable to those of animal meat, and that may therefore serve as substitutes for animal meat.
With regard to Claim 4, Nahmias teaches the cell mass comprises fibroblast or myoblast cells ([0046]-[0047], [0070]) wherein the cells are from poultry ([0047]).
With regard to Claim 5, Nahmias is silent to maintaining the internal temperature of the hydrated first cell mass of step a between about 0.0°C to about 5.0°C.
Ajami teaches the term “controlled conditions” which refers to conditions that are defined by a human, such as, for example, level of oxygenation, pH, salt concentration, temperature, and nutrient (e.g., carbon, nitrogen, sulfur) availability. A non-animal source grown under controlled conditions may produce a distribution of protein, carbohydrate, lipid, and other compounds that are not native to the non-animal source ([0037]).
Therefore, it would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to utilize desired controlled conditions, such as temperature, to achieved or maintain the desired properties of the hydrated cell mass. See MPEP 2144.05(II)(A) "[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).
With regard to Claim 6, Nahmias is silent to the internal temperature of one or more of the hydrated first cell mass of step a or the hydrated second cell mass of step b remain below 35°C prior to the forming step.
Ajami teaches the use of controlled conditions. Controlled conditions is defined by conditions that are defined by a human, such as, for example, level of oxygenation, pH, salt concentration, temperature, and nutrient (e.g., carbon, nitrogen, sulfur) availability. A non-animal source grown under controlled conditions may produce a distribution of protein, carbohydrate, lipid, and other compounds that are not native to the non-animal source ([0037]).
It would be obvious to one with ordinary skill in the art to modify Nahmias in view of Ajami to control the temperature of the cell mass prior to forming to achieve the desired properties during processing.
With regard to Claims 7 and 8, Nahmias teaches the cells may be contained in an emulsion mixture ([0081]) but does not further specify the emulsion containing an oil or further the type of oil.
Ajami teaches the oil is present in an amount of about 30% and about 85%, between about 40% and about 70%, between about 50% and about 60%, or at least about 50% by weight of lipid. In some such embodiments, the emulsions comprise oils in amounts of between about 1% and about 50%, between about 3% and about 40%, between about 5% and about 20%, between about 5% and 10%, between about 5% and about 40%, between about 5% and about 60%, or between about 10% and about 30% by weight of the emulsion mixture ([0162]). 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. Ajami teaches the lipid content can modulate the taste of the meat-like food product ([0090]) and further increase the tenderness and juiciness of the meat-like food product ([0107]). Ajami teaches the oil can be soybean oil as well as other oils cited in paragraph 0162 ([0162]).
Therefore, it would have been obvious to one with ordinary skill in the art to modify Nahmias to include the oil content as taught by Ajami to modulate the taste and increase the tenderness and juiciness of the meat-like food product. In addition Ajami imparts reasoning for obviousness because the teaching shows the claimed soybean oil was known to have been successfully used and published at the time of filing, which means it was within the general skill of one with ordinary skill in the art to select and use soybean oil, 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.
With regard to Claims 9 and 10, Ajami teaches the hydrocolloids is present in an amount between about 0.1% to about 10.0%, between about 0.5% to about 8.0%, between about 2% and about 4%, or between about 1.5% to about 6.5% by weight of the emulsion ([0164]). 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. Ajami teaches the hydrocolloid can be locust bean gum and guar gum as well as other hydrocolloids shown listed in paragraph 164. ([0164]). Ajami teaches the hydrocolloids act as emulsifiers that stabilize the emulsions during preparation procedures ([0164]).
Therefore, it would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Nahmias in view of Ajami to include hydrocolloids in the amount as taught by Ajami to stabilize the emulsion during preparation procedures. In addition Ajami imparts reasoning for obviousness because the teaching shows the claimed locust bean gum and guar gum were known to have been successfully used and published at the time of filing, which means it was within the general skill of one with ordinary skill in the art to select and use locust bean gum and guar gum, 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.
With regard to Claim 21, Nahmias teaches the connective tissue cells are capable of producing cultured meat ([0018]). Nahmias teaches the cells are non-human animal cells such as fibroblast or myoblast cells ([0046]-[0047], [0070]). Nahmias teaches the cells may be contained in an emulsion mixture ([0081]). Nahmias teaches the cultured meat comprises at least (emphasis added) 5, 10, 15, 20, 25, 30, 35, 40, 45 or 50% cells ([0068]). 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); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
However, Nahmias is silent to the oil and the hydrocolloid content of the emulsion.
Ajami teaches the emulsion comprises oil in amounts of between about 1% and about 50% by weight ([0162]) and a hydrocolloid in an amount about 0.1% to about 10.0% by weight ([0164]). Ajami teaches the lipid content can modulate the taste of the meat-like food product ([0090]) and further increase the tenderness and juiciness of the meat-like food product ([0107]). Ajami teaches the hydrocolloids act as emulsifiers that stabilize the emulsions during preparation procedures ([0164]). Ajami teaches the dispersed system components of the agent release systems comprised in the meat-like food products provided may be cell wall materials, wherein the dispersed system is part of the emulsion ([0190]) In addition, Ajami teaches a variety of ingredients in varying quantities can be added to the emulsion to enhance taste, flavor, aroma, and nutrition of the meat-like product to resemble a meat product ([0165]-[0168]). Ajami teaches the volume fractions of emulsions can play a pivotal role in the imparting or enhancing of meat-like attributes ([0180]).
Therefore it would have been obvious to one with ordinary skill in the art to modify the emulsion that includes the hydrated cell mass as taught by Nahmias to include the oil and hydrocolloid in the amounts as taught by Ajami because the lipid content can modulate the taste of the meat-like food product ([0090]) and further increase the tenderness and juiciness of the meat-like food product ([0107]). While the hydrocolloids act as an emulsifier that stabilize the emulsions during preparation procedures ([0164]). Further the volume fractions of emulsions can play a pivotal role in the imparting or enhancing of meat-like attributes.
With regard to Claim 24, Nahmias teaches enriched population of connective tissue cells that are capable of anchorage-independent growth and compositions comprising those cells ([0005]). Nahmias teaches the connective tissue cells are capable of producing cultured meat ([0018]). But is silent to the composition of the cell-based food product.
Ajami teaches the food product comprises an emulsion in an amount of 1% to about 40% (Claims 16 and 19), a hydration mixture in an amount of 22.77% to 40% by weight (Table 7), texture protein in an amount of 30 to about 55% by weight (Claim 72), and a dry blend in the amount of 1.91% to 5.17% by weight (Table 7). See MPEP 2144.05 In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. Ajami teaches food products that have structures, textures, and other properties comparable to those of animal meat, and that may therefore serve as substitutes for animal meat. (abstract).
Therefore, it would have been obvious to one with ordinary skill in the art to modify the cultured meat product taught by Nahmias to include the emulsion mixture, hydration mixture, texture protein, and dry blend in the amounts as taught by Ajami to create a food products that have structures, textures, and other properties comparable to those of animal meat, and that may therefore serve as substitutes for animal meat.
With regard to Claim 25,. Nahmias teaches it can advantageous for cells to be grown in a suspension culture ([0003]). Nahmias teaches growing cells in suspension has the obvious advantage of being able to culture a far greater density of cells in one vessel. Bioreactors, and other suspension reactors allow for densities of tens of millions of cells per mL to be cultured ([0003])
One with ordinary skill in the art would recognize the density of a culture is directly related to the cultures packed cell volume and water content. Therefore, it would have been obvious to one with ordinary skill in the art to optimize the cultures growing conditions through routine experimentation to achieve the desired culture density (i.e., packed cell volume and water content) for the downstream application in the cell-based food product. See MPEP 2144.05(II)(A) "[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).
With regard to Claim 28, Nahmias teaches a cultures meat product but is silent to the product being in the form of a patty.
Ajami teaches forming the cell-based food product into a patty (Example 5 [0298]-[0299]).
Therefore Ajami imparts reasoning for obviousness because the teaching shows that the claimed meat alternative in the form of a patty 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 select the shape of a patty, 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.
Claims 2-3, 11, and 26-27 are rejected under 35 U.S.C. 103 as being unpatentable over Nahmias (US 20210395690 A1 in view of ) Ajami (US 20170105438 A1) and Savir et al. (herein referred to as Savir, US 20200100525 A1).
With regard to Claim 2, the combination of Nahmias and Ajami is silent to the hydration mixture further comprises a hydrated second cell mass.
Savir teaches an embodiment wherein a cell mass is added to an emulsion mixture (step a) as well as adding a cell mass to a hydration mixture ([0357], [0360]) Savir teaches utilizing cultured animal cells to enhance a meat organoleptic and/or mean nutritional property in the hybrid foodstuff (abstract, [0066]).
Therefore, it would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify the combination of Nahmias and Ajami in view of Savir to include a cell mass in the hydration mixture because Savir shows cell mass has been successfully used in a hydration mixture for producing a cell-based food product and published at the time of filing, which means it was within the skill of one with ordinary skill in the art to add a cell mass to the hydration mixture 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. In addition, it would be advantageous to include the cell mass in the hydration mixture to enhance a meat organoleptic and/or mean nutritional property in the hybrid foodstuff.
With regard to Claim 3, Nahmias teaches the hydrated first comprises non-human cells harvested from one or more suspension cultures. But the combination of Nahmias and Ajami is silent to the second cell masses comprising non-human cells harvested from one or more suspension cultures.
Savir teaches the non-human cells are produced in a suspension culture ([0148], [0171]).
Savir imparts reasoning for obviousness because the teaching shows suspension cultures were known to have been successfully used in a method to produce a cell-based food product and published at the time of filing, which means it was within the skill of one with ordinary skill in the art to select the use of suspension culture 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.
With regard to Claim 11, Nahmias is silent to freezing the cell-based food product until the composition is solid; and coating with batter and breading.
Ajami teaches freezing the food product either in uncooked, partially cooked, or cooked state ([0104]).
However, Ajami is silent to coating the frozen food product with batter and breading.
Savir teaches an embodiment wherein a cell-based food product is coated with batter and breading prior to being frozen ([0376]-[0385]). Per MPEP 2144.04(IV)(C) See In re Burhans, 154 F.2d 690, 69 USPQ 330 (CCPA 1946) (selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results);.
Therefore, in the absence of new or unexpected results, Savir imparts reasoning for obviousness because the teaching shows coating a cell-based food product with batter and breading was known to have been successfully utilized and published at the time of filing, which means it was within the skill of one with ordinary skill in the art to coat a cell-based food product with batter and breading 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. The examiner would like to the note that the claim does not limit the order in which the freezing and coating steps are to be performed. Thus, as explained above, Savir reads on the claimed limitations.
With regard to Claim 26, Nahmias teaches enriched population of connective tissue cells that are capable of anchorage-independent growth and compositions comprising those cells ([0005]). Nahmias teaches the connective tissue cells are capable of producing cultured meat ([0018]). But is silent to the composition of the cell-based food product. Nahmias teaches the cells are non-human animal cells such as fibroblast or myoblast cells ([0046]-[0047], [0070]). Nahmias teaches the cultured meat comprises at least 5, 10, 15, 20, 25, 30, 35, 40, 45 or 50% cells ([0068]). 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); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Ajami teaches the food product comprises water in an amount of 22.77% to 40% by weight (Table 7). Ajami teaches dry taste agents in an amount of about 1.82% to 5% by weight (table 7). Ajami teaches taste agents include multiple types of salts including sodium chloride ([0090]). In addition to the taste agent, Ajami teaches taste enhancers which are compounds that enhances the activity of taste agents or increases the sensitivity of taste-receptors in the gustatory system ([0090]). One with ordinary skill in the art would recognize a taste enhancer is equivalent to a flavor agent and one could include the taste enhancer in an amount which achieved the desired taste result and more than one taste enhancer to achieve the desired result. See MPEP 2144.05(II)(A) "[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).
Continuing, Ajami teaches the food product contains at least about 25% by weight of one or more meat structured protein products ([0113]) wherein some embodiments comprise two or more meat structured protein products having different attributes such as different color, aroma, taste, protein content, lipid content, carbohydrate content, edible fiber content, protein type, lipid type, carbohydrate type, edible fiber type, MC, pH, percentage of protein fibers that are substantially aligned, TPA parameters, diameter, and length. ([0114]). Ajami teaches the two or more meat structured protein products having different attributes are present in different proportions in the meat-like food products ([0114]). Therefore, one with ordinary skill in the art would reasonably deduce to include a first, second, and third textured protein with the desired attributes in amounts in which would achieve the desired characteristics in the final food product.
Ajami teaches an emulsion containing an oil ([0162]) and a hydrocolloid ([0164]) wherein the emulsion comprise oils in amounts of between about 1% and about 50% ([0162]) and the emulsion comprises between about 0.1% to about 10.0% by weight of the hydrocolloid ([0164]). The emulsion is present in the food product in an amount of about 1-40% by weight (Claims 16 and 49). 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). Ajami teaches food products that have structures, textures, and other properties comparable to those of animal meat, and that may therefore serve as substitutes for animal meat. (abstract).
Therefore, it would have been obvious to one with ordinary skill in the art to modify the cultured meat product taught by Nahmias to include the water, salt, flavoring agent, first texturized protein, second texturized protein, third texturized protein, second flavoring agent, oil and hydrocolloid in the amounts as taught by Ajami to create a food products that have structures, textures, and other properties comparable to those of animal meat, and that may therefore serve as substitutes for animal meat.
However, the combination of Nahmias and Ajami is silent to the first and second cell mass.
With regard to the second cell mass, Savir teaches a cultured meat-containing hybrid food ([0001]). Savir teaches utilizing cultured animal cells to enhance a meat organoleptic and/or mean nutritional property in the hybrid foodstuff (abstract, [0066]).Savir teaches the utilization of multiple cell masses in the food product ([0055]).
Therefore, it would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify the combination of Nahmias and Ajami in view of Savir to include a second cell mass in an amount in which the food product has the desired meat organoleptic and/or mean nutritional properties.
With regard to Claim 27, The combination of Nahmias and Ajami is silent to the second cell mass comprising a second population of cultured poultry cells.
Savir teaches the cultures cells are from domesticated animals such as chicken ([0166]) and more than one cell mass maybe be utilized in a cell-based food product ([0055]).
Therefore, Savir imparts reasoning for obviousness because the teaching shows poultry cells were known cultured cells to have been successfully used in a food product and published at the time of filing and it was known to utilize two cell mass in a cell-based food product, which means it was within the skill of one with ordinary skill in the art to select poultry cells for the second cell mass 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.
Claim 23 is rejected under 35 U.S.C. 103 as being unpatentable over Nahmias (US 20210395690 A1) in view of Ajami (US 20170105438 A1) and Zotter et al. (herein referred to a Zotter, WO 2021248047 A1)
With regard to Claim 23, Nahmias is silent to the water activity and hardness of the food product.
Ajami teaches characterizing the food product in view of its “doneness”. Ajami teaches the term “doneness” as used herein refers to a state in which a meat-like food product as provided herein after heating has obtained one or more similar or superior meat-like attributes compared to cooked animal meat (e.g., rare cooked animal meat, medium cooked animal meat, well done cooked animal meat). Specifically, a food product is “done” when compared to cooked animal meat if it has obtained similar or superior color, aroma, taste, chewiness, gumminess, springiness, cohesiveness, resilience, adhesiveness, hardness, MC, juiciness, internal temperature, cook loss, or head space GCMS ([0044]). Specifically, Ajami teaches the food product has a hardness of between about 1000 g and about 6000 g ([01217], see applicant specification paragraph [0070]). Ajami teaches variables that can be titrated to modulate the hardness of the meat-like food products provided herein include but are not limited to lipid content, structured protein products with different densities, MC, and binding agents with different viscoelastic properties, and pH ([0055]).
It would have been obvious to one with ordinary skill in the art that through routine optimization to modify variable such as lipid content, structured protein products with different densities, MC, and binding agents with different viscoelastic properties, and pH in order to achieve the desired harness of the food product. See MPEP 2144.05(I) which states 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) and MPEP 2144.05(II)(A) which states "[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).
However, the combination of Nahmias and Ajami is silent to the water activity of the food product.
Zotter teaches food products resembling whole muscle meat and seafood (title). Zotter teaches water activity is a measure of free or unbound water in a food product ([0138]). Zotter teaches the water activity of a hydrocolloid gel may influence its physical properties and thus its cooking behavior, including its melting temperature ([0138]) Zotter teaches the water activity of raw animal meat is typically between 0.97 and 0.99. In another embodiment, the water activity level of a plant-based meat analog, including a plant- based bacon is at least 0, at least 0.1, at least 0.2, at least 0.3, at least 0.4, at least 0.5, at least 0.6, at least 0.7, at least 0.8, at least 0.9 or at least 1.0 ([0206]-[0207]).
Therefore, it would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify the combination of Nahmias and Ajami to include the water activity as taught by Zotter to include the desired water activity to influence the physical properties of the food product.
Response to Arguments
Applicant's arguments filed 05 May 2026 have been fully considered but they are not persuasive.
First, applicant argues that neither reference cited by the examiner specifies that an emulsion is pre-formed with the cells. Applicant argues that pre-forming the emulsion with oil, hydrocolloid and cells in critical to the claimed method and points to the Davila Declaration.
The declaration is not persuasive. The declaration does not have any comparative showing over the prior art. Nahmias, the new primary reference, teaches an emulsion formed with cells. Further, Ajami discloses forming an emulsion containing oil, hydrocolloid and ingredients as disclosed in paragraphs [0026], [0158], [0162], [0164]. Ajami further provides ample motivation as to why one with ordinary skill in the art would be motivated to modify the emulsion taught by Nahmias, which contains cells, to include oil and a hydrocolloid. Reasons include oil assists in modulate the taste and increase the tenderness and juiciness of the meat-like food product and hydrocolloids to stabilize the emulsion during preparation procedures. Looking further into the declaration, example 4 in referenced in the instant specification. Table 4, in example 4, describes different mixing sequences for the control, examples A,B and C with sample A having pre-made hydrocolloid emulsion. However, no other information is given for all the samples. It is not known if they contain the same ingredients and same amounts. There is no evidence to show that the only difference among the samples is the forming of emulsion versus no emulsion. Thus, the data shown in tables 5 and 6 are not conclusive of difference between forming emulsion versus no emulsion. Most critically, the reference to example 4 is not a showing against the prior art. See MPEP 716.02. Therefore applicant’s argument is not found to be persuasive.
Next, applicant argues that neither reference cited by the examiner teaches a cell-based food product comprising at least 35% by weight cell mass. This argument is not found persuasive because the new ground of rejection relies on Nahmias to teach the claimed at least 35% by weight cell mass. Therefore, applicant’s argument is not found to be persuasive.
Applicant argues that one with ordinary skill in the art would not have been motivated to modify the method of Ajami to add animal cells because Ajami expressly teaches to minimize animal-based components. This argument is not persuasive because Ajami is not relied upon in the newly presented rejection as the primary reference. Nahmias is now the primary reference and clearly teaches the use of animal cells in an emulsion which is ultimately utilized in a cell-based food product as instantly claimed.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KARLA I DIVIESTI whose telephone number is (571)270-0787. The examiner can normally be reached Monday-Friday 7am-3pm (MST).
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Erik Kashnikow can be reached at (571) 270-3475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/K.I.D./Examiner, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792
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