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 .
This office action is in response to the application filed on July 27, 2023. The earliest effective filing date of the application is January 28, 2021.
Status of Application
The preliminary amendment filed July 27, 2023 has been entered. The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 1 – 39
Withdrawn claims: None
Amended claims: 3, 6 – 16, 18, 22, 23, 26 – 30, and 32 – 38
Claims currently under examination: 1 – 39
Claim Objections
Claims 10 – 13, 23 – 25, 30, 32 – 35, and 39 are objected to because of the following informalities:
Claims 10 and 11 recite “wherein the fat comprises […] of the food product” which should be rewritten as “wherein the food product comprises […] of the fat” to avoid misinterpretation.
Claims 12 and 13 recite “wherein the primary binder comprises […] of the food product” which should be rewritten as “wherein the food product comprises […] of the primary binder” to avoid misinterpretation.
Claims 23 – 25, 30, and 39 recite “EPG” without introducing it in unabbreviated form in its first occurrence in the claims. Claim 23 should introduce “EPG” as “esterified propoxylated glycerin (“EPG”)”.
Claims 32 – 35 recite “wt% of the calorie content” which opens the claim to misinterpretation of whether the claim is limiting the weight percent of the fat, or the calorie contribution of the fat because calories are units of energy, not weight. To avoid misinterpretation, “wt% of the calorie content” could be rewritten as “% of the calorie content”. The claim is interpreted to be limiting the calorie contribution of the fat in the composition.
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 30 – 34 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 30 recites the phrase "such as" which renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d). For the purpose of examination, the ranges of carbon atoms in the R1 residues of Formula I following “such as” are not considered limiting.
Claim 30 recites a broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claim 30 recites the broad recitation 1-23 carbon atoms, and the claim also recites 7-23, 12-23, and 14-23 carbon atoms, which is the narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims. For the purpose of examination, only the range of 1-23 carbon atoms in the R1 residues of Formula I is considered.
Claims 31 – 34 are rejected as dependent on a rejected base claim.
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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.
Claims 1, 12, 18, 23, 30, 36, and 37 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Sekula et al. (U.S. Patent No. 6,361,817 B1 – IDS Filed on July 27, 2023) as evidenced by Wikipedia (Peanut flour. Wikipedia. (n.d.) Retrieved from: https://en.wikipedia.org/wiki/Peanut_flour).
Regarding claim 1, Sekula teaches a reduced calorie and reduced fat peanut butter composition (i.e., a plant-based food product) comprising:
a) up to about 70% by weight full fat peanuts (Claim 1; col. 4, lines 31 – 34),
b) from about 10% by weight to about 30% by weight of defatted peanut flour having about 0.5% by weight to about 15% by weight fat content (i.e., a plant-based dough comprising an edible fibrous component – Claim 1; col 4, lines 34 – 37), and
c) from about 15% by weight to about 30% by weight of an EPG (i.e., esterified alkoxylated polyol – Claim 1).
With respect to the recitation “a plant-based dough comprising an edible fibrous component” in claim 1, as evidenced by Wikipedia, defatted peanut flour comprises protein (i.e., plant protein) and fiber (i.e., an edible fibrous component – p. 1 and 2, Nutritional value and Table). Therefore, the defatted or partially defatted peanut flour in the peanut butter of Sekula is a plant-based dough comprises an edible fibrous component.
While Sekula does not recognize the EPG as a binder, it is recognized that “binder” is the intended use for the esterified alkoxylated polyol of claim 1 and such claim language does not further limit the claim. Therefore Sekula teaches a plant-based food product comprising a plant-based dough comprising an edible fibrous component and a primary binder comprising an esterified alkoxylated polyol.
Regarding claim 12, Sekula teaches the reduced calorie and reduced fat peanut butter composition (i.e., a plant-based food product) comprises from about 15% by weight to about 30% by weight of an EPG (i.e., esterified alkoxylated polyol – Claim 1).
Regarding claim 18, Sekula teaches nut butters comprising EPG have good peanut flavor normally associated with inherent oil changes in the nut butter (col. 4, lines 11 – 14). Therefore the peanut butter of Sekula comprises a flavoring agent.
Regarding claim 23, the reduced calorie and reduced fat peanut butter composition (i.e., a plant-based food product) of Sekula comprises from about 15% by weight to about 30% by weight of an EPG (i.e., esterified alkoxylated polyol – Claim 1).
Regarding claim 30, Sekula teaches the fatty acid-esterified propoxylated glycerin (i.e., EPG) compositions of the invention contain a glyceryl residue, oxypropylene units, and fatty acid acyl groups (col. 4, lines 56 – 65). Sekula teaches the glyceryl residue may have the generic structure (col. 5, lines 1 – 9):
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Sekula teaches the acyl groups may correspond to the general structure:
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wherein n is an integer of from 10 to 22 (col. 7, lines 1 – 9).
Sekula teaches the oxypropylene units are generally interspersed between glyceryl residue and the acyl groups and have the structure (col. 5, lines 16 – 23):
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Sekula teaches typically, more than one oxypropylene unit may be present between an oxygen of an individual glyceryl residue and an acyl group such that a polyoxypropylene unit is created (col. 5, lines 24 – 26). Sekula teaches certain of the acyl groups may be attached directly to the glyceryl residue, without any intervening oxypropylene units (i.e., a “branch” of the glyceryl residue may have zero oxypropylene units – col. 5, lines 29 – 31). Sekula teaches the average number of oxypropylene units in the fatty acid-esterified propoxylated glycerin composition is from about 3 to about 12 (col. 5, lines 33 – 25).
Therefore, Sekula teaches an EPG of the following structure:
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wherein R is, independently for each occurrence, selected from
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(i.e.,
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wherein R2 and R3 are either hydrogen or methyl, but R2 and R3 are not both hydrogen or both methyl);
R1 for each occurrence is (CH2)nCH3 wherein n is an integer of from 10 to 22 (i.e., a saturated hydrocarbon residue having 11 – 23 carbons);
and a, b, and c are independently selected from 0 or more, with a+b+c preferably within 3 – 12.
Regarding claims 36 and 37, absent evidence to the contrary, the peanut butter of Sekula does not comprise methylcellulose.
Claims 2 – 5 and 21 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Sekula et al. (U.S. Patent No. 6,361,817 B1 – IDS Filed on July 27, 2023) as evidenced by Wikipedia (Peanut flour. Wikipedia. (n.d.) Retrieved from: https://en.wikipedia.org/wiki/Peanut_flour) as applied to claim 1 above and further evidenced by Ghatak et al. (Peanut proteins: Applications, ailments and possible remediation. Journal of Industrial and Engineering Chemistry. Vol 19. (2013)).
Regarding claims 2 – 5, as evidenced by Ghatak, peanuts comprise albumin (p. 2, paragraph 1).
While Sekula does not recognize the albumin naturally present in peanuts as a binder, it is recognized that “binder” is the intended use for the plant protein albumin and such claim language does not further limit the claim. Therefore Sekula teaches a plant-based food product comprising a plant-based dough comprising an edible fibrous component, a primary binder comprising an esterified alkoxylated polyol, and a secondary binder comprising the plant-protein albumin.
Regarding claim 21, as evidenced by Ghatak, peanuts comprise arginine, tyrosine, phenylalanine, and tryptophan (p. 2, paragraph 1, Table 1).
Claims 8, 9, and 26 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Sekula et al. (U.S. Patent No. 6,361,817 B1 – IDS Filed on July 27, 2023) as evidenced by Wikipedia (Peanut flour. Wikipedia. (n.d.) Retrieved from: https://en.wikipedia.org/wiki/Peanut_flour) as applied to claim 1 above and further evidenced by Chamberlin et al. (Determining the Oleic/linoleic Acid Ratio in a Single Peanut Seed: a Comparison of Two Methods. Peanut Science. Vol 38. Pp. 78 – 84. (2011)).
Regarding claims 8 and 9, as evidenced by Chamberlin, cultivated peanut (Arachis hypogaea L.) is the third major oilseed of the world behind soybean and cotton (p. 78, paragraph 2). Therefore, peanuts comprise non-animal oil (i.e., fat).
Regarding claim 26, as evidenced by Chamberlin, cultivated peanut (Arachis hypogaea L.) is the third major oilseed of the world behind soybean and cotton (p. 78, paragraph 2). Therefore, peanuts comprise oil (i.e., fat). Sekula teaches the EPG compositions may be used to replace conventional fat as the roasting medium in formulating the nut butter compositions or used otherwise, such as directly blended or mixed with other nut butter ingredients prior to or after roasting (col. 10, lines 9 – 14).
Claim 14 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by Sekula et al. (U.S. Patent No. 6,361,817 B1 – IDS Filed on July 27, 2023) as evidenced by Wikipedia (Peanut flour. Wikipedia. (n.d.) Retrieved from: https://en.wikipedia.org/wiki/Peanut_flour) as applied to claim 1 above and further evidenced by Boualeg et al. (Purification of Water Soluble Proteins (2S Albumins) Extracted from Peanut Defatted Flour and Isolation of their Isoforms by Gel Filtration and Anion Exchange Chromatography. Scientific Study & Research. Chemistry & Chemical Engineering, Biotechnology, Food Industry. Vol 18. Iss 2. Pp. 135 – 143. (2017)).
As evidenced by Boualeg, defatted peanut flour comprises albumin (p. 135, Abstract; p. 135, Figure 1, Water-soluble proteins; p. 135, paragraph 3).
Claim 15 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by Sekula et al. (U.S. Patent No. 6,361,817 B1 – IDS Filed on July 27, 2023) as evidenced by Wikipedia (Peanut flour. Wikipedia. (n.d.) Retrieved from: https://en.wikipedia.org/wiki/Peanut_flour) as applied to claim 1 above and further evidenced by Lu et al. (Foaming and emulsifying properties of pea albumin fractions and partial characterisation of surface-active components. J Sci Food Agric. Vol 80. Pp. 1964 – 1972. (2000)).
Albumin is a protein present in peas (i.e., a vegetable), as evidenced by Lu (p. 1964, paragraph 1). Therefore, the albumin present in peanuts is considered to be a vegetable protein.
Claims 19 and 20 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Sekula et al. (U.S. Patent No. 6,361,817 B1 – IDS Filed on July 27, 2023) as evidenced by Wikipedia (Peanut flour. Wikipedia. (n.d.) Retrieved from: https://en.wikipedia.org/wiki/Peanut_flour) as applied to claim 18 above and further evidenced by Chamberlin et al. (Determining the Oleic/linoleic Acid Ratio in a Single Peanut Seed: a Comparison of Two Methods. Peanut Science. Vol 38. Pp. 78 – 84. (2011)).
Regarding claims 19 and 20, as evidenced by Chamberlin, peanuts comprise oleic acid (i.e., a flavor compound – p. 78, paragraph 3).
Claim 22 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by Sekula et al. (U.S. Patent No. 6,361,817 B1 – IDS Filed on July 27, 2023) as evidenced by Wikipedia (Peanut flour. Wikipedia. (n.d.) Retrieved from: https://en.wikipedia.org/wiki/Peanut_flour) as applied to claim 1 above and further evidenced by Chamberlin et al. (Determining the Oleic/linoleic Acid Ratio in a Single Peanut Seed: a Comparison of Two Methods. Peanut Science. Vol 38. Pp. 78 – 84. (2011)) and PubChem (Melting Point. Oleic Acid. PubChem. (n.d.) Retrieved from: https://pubchem.ncbi.nlm.nih.gov/compound/Oleic-Acid#section=Melting-Point&fullscreen=true).
As evidenced by Chamberlin, peanuts comprise oleic acid (p. 78, paragraph 3). As evidenced by PubChem, oleic acid has a melt point temperature of 13 – 16 °C (p. 1, Melting Point).
Claims 24, 25, and 39 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Sekula et al. (U.S. Patent No. 6,361,817 B1 – IDS Filed on July 27, 2023) as evidenced by Wikipedia (Peanut flour. Wikipedia. (n.d.) Retrieved from: https://en.wikipedia.org/wiki/Peanut_flour) as applied to claim 23 above and further evidenced by AOCS (Mettler Dropping Point. AOCS. (n.d.) Retrieved from: https://library.aocs.org/Cc-18-80/).
Regarding claims 24 and 25, Sekula teaches the EPGs used in the nut butters of the examples had a Mettler dropping point (i.e., melt point temperature) of about 109 °F (i.e., 42.7 °C – col. 11, lines 40 – 44). As evidenced by AOCS, the dropping point of a fat or oil is the temperature at which the test sample will become fluid to flow under the conditions of the test (i.e., the fat or oil has melted – p. 1, Definition).
Regarding claim 39, Sekula teaches the EPGs used in the nut butters of the examples had a Mettler dropping point (i.e., melt point temperature) of about 109 °F (i.e., 42.7 °C, which is about 40 °C – col. 11, lines 40 – 44). As evidenced by AOCS, the dropping point of a fat or oil is the temperature at which the test sample will become fluid to flow under the conditions of the test (i.e., the fat or oil has melted – p. 1, Definition).
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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 13 and 31 are rejected under 35 U.S.C. 103 as being unpatentable over Sekula et al. (U.S. Patent No. 6,361,817 B1 – IDS Filed on July 27, 2023) as evidenced by Wikipedia (Peanut flour. Wikipedia. (n.d.) Retrieved from: https://en.wikipedia.org/wiki/Peanut_flour).
Regarding claim 13, the range of EPG (i.e., primary binder) wt% within the reduced calorie and reduced fat peanut butter composition (i.e., a plant-based food product), about 15% by weight to about 30% by weight, as disclosed by Sekula, overlaps with the claimed range of about 1 to about 15 wt%. MPEP § 2114.05 teaches that it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness.
Regarding claim 31, the range of a+b+c, 3 to 12, as disclosed by Sekula, overlaps with the claimed range of 6 to 8. MPEP § 2114.05 teaches that it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness.
Claims 1 – 21, 23, 30, 36, and 37 are rejected under 35 U.S.C. 103 as being unpatentable over Varadan et al. (US 20170188612 A1 – IDS Filed on July 27, 2023) in view of Handwerker et al. (U.S. Patent No. 5,362,894 A).
Regarding claim 1, Varadan teaches a meat replica composition that includes a meat dough; a carbohydrate-based gel; a fat; a flavoring agent; a binding agent; and a heme-containing protein and/or an iron salt ([0005]). Varadan teaches the meat dough can include an isolated plant protein, an edible fibrous component, an optional flavoring agent, and an optional fat ([0005]). Because the meat dough of Varadan comprises a plant protein and an edible fibrous component, the meat dough of Varadan is plant-based.
Varadan does not teach the meat replica comprises an esterified alkoxylated polyol.
Handwerker teaches a fatty acid-esterified alkoxylated polyol useful as reduced calorie fat substitute (col. 1, lines 6 – 12). Handwerker teaches combining the fatty acid-esterified alkoxylated polyol with other foodstuff ingredients to form food compositions such as meat and egg substitutes or extenders (col. 10, lines 1 – 24).
Varadan and Handwerker are combinable because they are concerned with the same field of endeavor, namely, ingredients for meat substitutes. It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to replace some of the fat in the meat replica of Varadan with the fatty acid-esterified alkoxylated polyol of Handwerker because the fatty acid-esterified alkoxylated polyol of Handwerker is useful as reduced calorie fat substitute and known to be used in meat substitutes (i.e., meat replicas).
Because the combination of Varadan and Handwerker comprises an esterified alkoxylated polyol, the combination of Varadan and Handwerker comprises a primary binder comprising an esterified alkoxylated polyol. Therefore the invention of claim 1 is rendered obvious by Varadan in view of Handwerker.
Regarding claim 2, Varadan teaches the meat replica composition comprises a binding agent (i.e., a secondary binder – [0005]).
Regarding claim 3 – 5, Varadan teaches the binding agent (i.e., secondary binder) can be an isolated plant protein (e.g., a RuBisCO, an albumin, a gluten, a conglycinin, or mixtures thereof – [0021]).
Regarding claims 6 and 7, Varadan teaches the binding agent (i.e., secondary binder) can be a carbohydrate based gel that becomes firm upon cooking to 140° F. to 190° F ([0021]). Varadan teaches the carbohydrate based gel (i.e., secondary binder) can contain methylcellulose, hydroxypropylmethyl cellulose, guar gum, locust bean gum, xanthan gum, or a mixture thereof ([0021]).
Regarding claims 8 and 9, Varadan teaches the meat replica composition comprises a fat ([0005]). Varadan teaches the fat can be a non-animal fat ([0018]).
Regarding claims 10 and 11, Varadan teaches the meat replica composition comprises about 5% to about 35% by weight of a fat ([0005]).
The range of fat wt % within the meat replica composition, about 5% to about 35% by weight, as disclosed by Varadan, overlaps with the claimed range of about 0.10 to about 5wt%. MPEP § 2114.05 teaches that it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness.
Regarding claims 12 and 13, while Varadan does not teach the amount of fatty acid-esterified alkoxylated polyol of Handwerker in the meat replica composition, one of ordinary skill in the art would have adjusted the weight % of the fatty acid-esterified alkoxylated polyol of Handwerker (i.e., the primary binder) during routine optimization to find the meat replica composition with the desired calorie reduction. MPEP §2144.05(II) states where 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). The claimed weight percent of the primary binder in the composition, about 0.01 to about 15 wt %, would thus be obvious.
Regarding claim 14, Varadan teaches the edible fibrous component can be a an extruded mixture of isolated plant proteins such as glutelins, albumins, legumins, vicillins, convicillins, glycinins and protein isolates such as from any seed or bean, including soy, pea, lentil, etc., or a solution-spun protein fiber such as prolamin solution-spun protein fiber ([0059]).
Regarding claim 15, Varadan teaches the edible fibrous component can be a an extruded mixture of isolated plant (i.e., vegetable) proteins such as glutelins, albumins, legumins, vicillins, convicillins, glycinins and protein isolates such as from any seed or bean, including soy, pea, lentil, etc., or a solution-spun protein fiber such as prolamin solution-spun protein fiber ([0059]).
Regarding claim 16, Varadan teaches the meat replica composition comprises a heme-containing protein ([0005]).
Regarding claim 17, Varadan teaches examples of heme-containing proteins are a non-symbiotic hemoglobin, a Hell's gate globin I, a flavohemoprotein, a leghemoglobin, a heme-dependent peroxidase, a cytochrome c peroxidase, or a mammalian myoglobin ([0022]).
Regarding claim 18, Varadan teaches the meat replica composition comprises a flavoring agent ([0005]).
Regarding claim 19, Varadan teaches the flavoring agent can be a flavoring ([0094]).
Regarding claim 20, Varadan teaches the flavoring agent can be a flavoring such as yeast extract, hydrolyzed protein, or a flavor compound. Flavor compounds can include, for example, phenylacetic acid, (E,E)-2,4-nonadienal, aquaresin onion, oil soluble onion, p-cresol, acetonyl acetate, 4-hydroxy-2,5-dimethyl-3(2H)-furanone, (E,E)-2,4-octadienal, 2-methyl-1-butane thiol, 2-methyl-3-furyl tetrasulfide, ethyl 2-mercaptopropionate, 2-mercapto-3-butanol (mixture of isomers), n-decane-d22, oil soluble garlic, sulfurol, sulfuryl acetate, mercapto-3-butanol, spiromeat, 1-penten-3-one, 2-methyl-3-furanthiol, 2-methyl-3-tetrahydrofuranthiol, oleic acid, dipropyl trisulfide, difurfuryl disulfide, methylcyclopentenolone, 3-methylthio hexanal, butyric acid, butyrolactone, 5-methyl-2(3H)-furanone, furaneol, 1-(1H-pyrrol-2-yl)-ethanone, hexanoic acid, and combinations thereof ([0094]).
Regarding claim 21, Varadan teaches a dough broth for pre-flavoring a meat dough ([0108]). Varadan teaches the meat broth comprises a precursor mix (i.e., a flavor agent) that generates savory or meaty flavors in the broth including caramelized, fatty, beefy, nutty, sulfur, metallic, buttery, sweet, savory, and umami ([0108]). Varadan teaches the precursor mix (i.e., flavor agent) comprises alanine, arginine, asparagine, aspartate, cysteine, glutamic acid, glutamine, glycine, histidine, isoleucine, leucine, lysine, methionine, phenylalanine, proline, threonine, tryptophan, tyrosine, valine, glucose, ribose, thiamine, IMP, GMP, lactic acid, creatine, L-taurine, glutathione, and N-acetyl L-cysteine (p. 14, Table 2).
Regarding claim 23, the fatty acid-esterified alkoxylated polyol of Handwerker is an EPG.
Regarding claim 30, Handwerker teaches the short chain acid-esterified alkoxylated polyol has the general structure:
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wherein R1 and R2 are different and are hydrogen or methyl, R3 and R4 are different and are hydrogen or methyl, R5 and R6 are different and are hydrogen or methyl, and the total of m1 + m2 + m3 is from 3 to 21. Preferably, R2, R4 and R6 are methyl (col. 5, lines 7 – 24).
Therefore, Handwerker teaches an EPG of the following structure:
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wherein R is, independently for each occurrence, selected from
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(i.e.,
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wherein R2 and R3 are either hydrogen or methyl, but R2 and R3 are not both hydrogen or both methyl);
R1 for each occurrence is CH3 (i.e., a saturated hydrocarbon residue having 1 carbon);
and a, b, and c are independently selected from 3 to 21.
The range of a, b, and c, 3 to 21, as disclosed by Varadan, overlaps with the claimed range of 0 to 20. MPEP § 2114.05 teaches that it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness.
Regarding claims 36 and 37, absent evidence to the contrary, the meat replica composition of Varadan does not comprise methylcellulose.
Claim 22 is rejected under 35 U.S.C. 103 as being unpatentable over Varadan et al. (US 20170188612 A1 – IDS Filed on July 27, 2023) in view of Handwerker et al. (U.S. Patent No. 5,362,894 A) as applied to claim 1 above, and further evidenced by Vegan Baking (Fat and Oil Melt Point Temperatures. Veganbaking.net. (n.d.) Retrieved from: https://www.veganbaking.net/articles/tools/fat-and-oil-melt-point-temperatures).
Varadan teaches the fat can be, for example, palm oil ([0018]). As evidenced by Vegan Baking, palm oil has a melt point temperature of 35 °C (p. 1, Table, Palm Oil).
Claims 24 and 25 are rejected under 35 U.S.C. 103 as being unpatentable over Varadan et al. (US 20170188612 A1 – IDS Filed on July 27, 2023) in view of Handwerker et al. (U.S. Patent No. 5,362,894 A) as applied to claim 23 above, and further in view of Sekula et al. (U.S. Patent No. 6,361,817 B1 – IDS Filed on July 27, 2023).
Regarding claims 24 and 25, Handwerker teaches the EPG comprises in each chain a number of oxypropylene sequences (col. 4, lines 55 – 68; col. 5, lines 1 – 5).
The combination of Varadan and Handwerker does not teach the melt point temperature of the EPG is greater than 37.5 °C or more.
Sekula teaches the melting point and other characteristics of an EPG can be modified by varying the number of oxypropylene groups, the fatty acid carbon chain length and the level of unsaturation (col. 3, lines 25 – 28). Sekula teaches the presence of oxypropylene units alter the melting point of the compositions thereby providing flexibility in achieving the desired product characteristics, such as mouthfeel and melting profile, and physiological characteristics, such as caloric density (col. 5, lines 36 – 39).
One of ordinary skill in the art would have adjusted the number of oxypropylene groups in the EPG of Handwerker during routine optimization to find the EPG with the melting point that results in the meat replica composition with the desired mouthfeel and melting profile, and physiological characteristics, such as caloric density. MPEP §2144.05(II) states where 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). The claimed melt point temperature of the EPG, 37.5 °C or more, would thus be obvious.
Claim 26 is rejected under 35 U.S.C. 103 as being unpatentable over Varadan et al. (US 20170188612 A1 – IDS Filed on July 27, 2023) in view of Handwerker et al. (U.S. Patent No. 5,362,894 A) as applied to claim 1 above, and further in view of Hashempour-Baltork et al. (Vegetable oil blending: A review of physicochemical, nutritional and health effects. Trends in Food Science & Technology. Vol 57. Pp. 52 – 58. (2016)).
Varadan and Handwerker do not explicitly disclose the fat and EPG (i.e., fat replacement) are blended.
Hashempour-Baltork teaches blending vegetable fats with different properties is known to be one of the simplest methods to create new specific products with desired textural and oxidative properties (p. 53, paragraph 1). Hashempour-Baltork teaches using a blended vegetable oil can be a simple way to take advantage of the different characteristic properties of each oil (p. 53, paragraph 1).
Varadan and Hashempour-Baltork are combinable because they are concerned with the same field of endeavor, namely, vegetable fats. It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to blend the fat and EPG (i.e., fat replacement) in the meat replica composition of Varadan, as taught by Hashempour-Baltork because a blended vegetable oil is a known way to take advantage of the different characteristic properties of each oil (i.e., the fat and the EPG).
Claims 27 – 29 are rejected under 35 U.S.C. 103 as being unpatentable over Varadan et al. (US 20170188612 A1 – IDS Filed on July 27, 2023) in view of Handwerker et al. (U.S. Patent No. 5,362,894 A) and Hashempour-Baltork et al. (Vegetable oil blending: A review of physicochemical, nutritional and health effects. Trends in Food Science & Technology. Vol 57. Pp. 52 – 58. (2016)) as applied to claim 26 above, and further in view of Sekula et al. (U.S. Patent No. 6,361,817 B1 – IDS Filed on July 27, 2023) as evidenced by Vegan Baking (Fat and Oil Melt Point Temperatures. Veganbaking.net. (n.d.) Retrieved from: https://www.veganbaking.net/articles/tools/fat-and-oil-melt-point-temperatures).
Regarding claim 27, Varadan teaches the fat can be a number of vegetable oils such as palm oil ([0018]). As evidenced by Vegan Baking, palm oil has a melt point temperature of 35 °C (p. 1, Table, Palm Oil). Handwerker teaches the EPG comprises in each chain a number of oxypropylene sequences (col. 4, lines 55 – 68; col. 5, lines 1 – 5).
The combination of Varadan and Handwerker does not teach the melt point temperature of the EPG.
Sekula teaches the melting point and other characteristics of an EPG can be modified by varying the number of oxypropylene groups, the fatty acid carbon chain length and the level of unsaturation (col. 3, lines 25 – 28). Sekula teaches the presence of oxypropylene units alter the melting point of the compositions thereby providing flexibility in achieving the desired product characteristics, such as mouthfeel and melting profile, and physiological characteristics, such as caloric density (col. 5, lines 36 – 39).
One of ordinary skill in the art would have adjusted the number of oxypropylene groups in the EPG of Handwerker during routine optimization to find the EPG with the melting point that results in the meat replica composition with the desired mouthfeel and melting profile, and physiological characteristics, such as caloric density. MPEP §2144.05(II) states where 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). An EPG with a melt point temperature of above 35 °C would thus be obvious.
By blending palm oil (with melt point of 35 °C) with an EPG with a melt point temperature above 35 °C, the blend of the palm oil and EPG would necessarily have a melt point below the melt point of the EPG (i.e., the primary binder).
Regarding claim 28, Varadan teaches the fat can be a number of vegetable oils such as palm oil or sesame oil ([0018]). As evidenced by Vegan Baking, palm oil has a melt point temperature of 35 °C, and sesame oil has a melt point temperature of -6 °C (p. 1, Table, Palm Oil and Sesame Oil). Handwerker teaches the EPG comprises in each chain a number of oxypropylene sequences (col. 4, lines 55 – 68; col. 5, lines 1 – 5).
The combination of Varadan and Handwerker does not teach the melt point temperature of the EPG.
Sekula teaches the melting point and other characteristics of an EPG can be modified by varying the number of oxypropylene groups, the fatty acid carbon chain length and the level of unsaturation (col. 3, lines 25 – 28). Sekula teaches the presence of oxypropylene units alter the melting point of the compositions thereby providing flexibility in achieving the desired product characteristics, such as mouthfeel and melting profile, and physiological characteristics, such as caloric density (col. 5, lines 36 – 39).
One of ordinary skill in the art would have adjusted the number of oxypropylene groups in the EPG of Handwerker during routine optimization to find the EPG with the melting point that results in the meat replica composition with the desired mouthfeel and melting profile, and physiological characteristics, such as caloric density. MPEP §2144.05(II) states where 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). An EPG with a melt point temperature of above -6 °C would thus be obvious.
While Varadan does not teach the meat replica composition comprises more than one fat, MPEP § 2144.06.II states an express suggestion to substitute one equivalent component or process for another is not necessary to render such substitution obvious. In re Fout, 675 F.2d 297, 213 USPQ 532 (CCPA 1982). One of ordinary skill in the art would have substituted some of the palm oil with sesame oil before the effective filing date of the application because sesame oil, like palm oil, is an acceptable fat suggested by Varadan, and both palm oil and sesame oil are fats that are known to impart desirable flavor onto a food composition.
In the case wherein the fat is palm oil (which has a melt point temperature of 35 °C) and the primary binder is an EPG with a melt point temperature at or above -6 °C, and some of the fat (i.e., palm oil) is replaced by sesame oil, which has a melt point temperature of -6 °C, the blend would necessarily have a melt point below the independent melt point temperatures of both the fat (i.e., palm oil) and the primary binder (i.e., EPG).
Regarding claim 29, Varadan teaches the fat can be a number of vegetable oils such as sesame oil ([0018]). As evidenced by Vegan Baking, sesame oil has a melt point temperature of -6 °C (p. 1, Table, Sesame Oil). Handwerker teaches the EPG comprises in each chain a number of oxypropylene sequences (col. 4, lines 55 – 68; col. 5, lines 1 – 5).
The combination of Varadan and Handwerker does not teach the melt point temperature of the EPG.
Sekula teaches the melting point and other characteristics of an EPG can be modified by varying the number of oxypropylene groups, the fatty acid carbon chain length and the level of unsaturation (col. 3, lines 25 – 28). Sekula teaches the presence of oxypropylene units alter the melting point of the compositions thereby providing flexibility in achieving the desired product characteristics, such as mouthfeel and melting profile, and physiological characteristics, such as caloric density (col. 5, lines 36 – 39).
One of ordinary skill in the art would have adjusted the number of oxypropylene groups in the EPG of Handwerker during routine optimization to find the EPG with the melting point that results in the meat replica composition with the desired mouthfeel and melting profile, and physiological characteristics, such as caloric density. MPEP §2144.05(II) states where 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). An EPG with a melt point temperature of below 36 °C would thus be obvious.
By blending sesame oil (with melt point of -6 °C) with an EPG with a melt point temperature below 36 °C, the blend of the palm oil and EPG would necessarily have a melt point below 36 °C.
Claims 32 – 34 are rejected under 35 U.S.C. 103 as being unpatentable over Varadan et al. (US 20170188612 A1 – IDS Filed on July 27, 2023) in view of Handwerker et al. (U.S. Patent No. 5,362,894 A) and Hashempour-Baltork et al. (Vegetable oil blending: A review of physicochemical, nutritional and health effects. Trends in Food Science & Technology. Vol 57. Pp. 52 – 58. (2016)) as applied to claim 30 above, and further evidenced by AICR (The Calorie Density of Foods – Exploring the Facts & Science. American Institute for Cancer Research. (January 18, 2021)).
Regarding claim 32 – 34, Varadan teaches the meat replica composition that includes about 5% to about 88% by weight of a meat dough; about 0% to about 40% by weight of a carbohydrate-based gel; about 5% to about 35% by weight of a fat; about 0.00001% to about 10% by weight of a flavoring agent; about 0% to about 15% by weight of a binding agent; and about 0.01% to about 4% by weight of a heme-containing protein and/or an iron salt ([0005]).
Therefore, Varadan teaches a composition comprising 5% by weight of a fat, 88% by weight meat dough (i.e., protein), 6.99% by weight carbohydrate-based gel (i.e., carbohydrate), 0.00001% by weight of a flavoring agent, 0.01% by weight of a heme-containing protein.
As evidenced by AICR, 1g of protein provides 4 calories, 1g of carbohydrates provide 4 calories, and 1g of fat provides 9 calories (p. 1, Macronutrients: Calories by the gram). Therefore, Varadan teaches a composition wherein fat contributes 10.5% of the calorie content.
Claim 35 is rejected under 35 U.S.C. 103 as being unpatentable over Varadan et al. (US 20170188612 A1 – IDS Filed on July 27, 2023) in view of Handwerker et al. (U.S. Patent No. 5,362,894 A) and Hashempour-Baltork et al. (Vegetable oil blending: A review of physicochemical, nutritional and health effects. Trends in Food Science & Technology. Vol 57. Pp. 52 – 58. (2016)) as applied to claim 1 above, and further evidenced by AICR (The Calorie Density of Foods – Exploring the Facts & Science. American Institute for Cancer Research. (January 18, 2021)).
Varadan teaches the meat replica composition that includes about 5% to about 88% by weight of a meat dough; about 0% to about 40% by weight of a carbohydrate-based gel; about 5% to about 35% by weight of a fat; about 0.00001% to about 10% by weight of a flavoring agent; about 0% to about 15% by weight of a binding agent; and about 0.01% to about 4% by weight of a heme-containing protein and/or an iron salt ([0005]).
Therefore, Varadan teaches a composition comprising 5% by weight of a fat, 88% by weight meat dough (i.e., protein), 6.99% by weight carbohydrate-based gel (i.e., carbohydrate), 0.00001% by weight of a flavoring agent, 0.01% by weight of a heme-containing protein.
As evidenced by AICR, 1g of protein provides 4 calories, 1g of carbohydrates provide 4 calories, and 1g of fat provides 9 calories (p. 1, Macronutrients: Calories by the gram). Therefore, Varadan teaches a composition wherein fat contributes 10.5% of the calorie content.
Claim 38 is rejected under 35 U.S.C. 103 as being unpatentable over Varadan et al. (US 20170188612 A1 – IDS Filed on July 27, 2023) in view of Handwerker et al. (U.S. Patent No. 5,362,894 A) as applied to claim 1 above, and further in view of McGee (Excerpt from: On Food and Cooking. The Science and Lore of the Kitchen. Scribner. (2004)) as evidenced by Template (Template: Smoke Point of cooking oils. Wikipedia. (n.d.) Retrieved from: https://en.wikipedia.org/wiki/Template:Smoke_point_of_cooking_oils).
Varadan teaches the fat can be, for example, palm oil ([0018]). As evidenced by Template, coconut oil has a smoke point of 177 – 204 °C, and palm oil has a smoke point of 235 °C (p. 2, Table, Palm Oil).
Varadan does not teach the esterified alkoxylated polyol has a higher smoke point than coconut oil.
McGee teaches most fats begin to decompose at temperatures well below their boiling points, and may even spontaneously ignite on the stovetop if their fumes come into contact with the gas flame (p. 1, paragraph 1). McGee teaches these facts limit the maximum useful temperature of cooking fats (p. 1, paragraph 1). McGee teaches the characteristic temperature at which a fat breaks down into visible gaseous products is called the smoke point (p. 1, paragraph 1). McGee teaches not only are the smoky fumes obnoxious, but the other materials that remain in the liquid, including chemically active free fatty acids, tend to ruin the flavor of the food being cooked (p. 1, paragraph 1).
Varadan and McGee are combinable because they are concerned with the same field of endeavor, namely, fats. It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to select an EPG with a high smoke point similar to the smoke point of the selected fat in the meat replica composition of Varadan, such as palm oil, which has a smoke point higher than coconut oil, to match the range of temperatures acceptable for cooking the fat and EPG within the meat replica composition of Varadan because, as taught by McGee, when a fat is heated above its smoke point, the fat emits obnoxious smoky fumes and the other materials that remain in the liquid, including chemically active free fatty acids, tend to ruin the flavor of the food being cooked.
Conclusion
No claims are allowed.
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/L.J.M./
Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793