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 .
Response to Restriction
Applicant’s election with traverse of the invention of Group I (Claims 1-21 and 23-41), drawn to a method of making a textured vegetable protein composite food, for examination in the reply filed 03/17/2026, is acknowledged by the Examiner.
Upon consideration of the Remarks, the Examiner rejoins Group II with Group I, and Claims 1- 42 is fully examined for patentability under 37 CFR 1.104. However, the Examiner maintains that Group III is a different invention. Unlike Claims 22 and 42, which requires that the textured vegetable protein composite food are produced by the process of Claims 1 and 23, Claim 43 does not require the steps in these processes and can be made by a different method.
A modified Restriction requirement action is included herewith.
RESTRICTION REQUIREMENT
Claims 1-55 are pending.
Restriction to one of the following inventions is required under 35 U.S.C. 121:
Claims 1-22 and 23-42, drawn to a method of making a textured vegetable protein composite food comprising a water-absorbable polysaccharide thickener and a water-absorbable textured vegetable protein, comprising: i) adding 80% or more of water to 1 kg or more of water-absorbable polysaccharide thickener within 30 seconds; and ii) adding the water-absorbable textured vegetable protein to the hydrated polysaccharide thickener and mixing together, to give a textured vegetable protein composite; and drawn to a method of making a textured vegetable protein composite food comprising a water-absorbable polysaccharide thickener and a water-absorbable textured vegetable protein, comprising: i) adding water to water-absorbable polysaccharide thickener; and ii) adding the water-absorbable textured vegetable protein and water to the hydrated polysaccharide thickener and mixing together, wherein the amount of water in i) and the total amount of water in ii) has a mass ratio of 4.5:5.5 to 9.9:0.1, classified in at least A23L 13/00; and drawn to a textured vegetable protein composite food products, classified in at least A23J 3/227.
Claim 43-55, drawn to a textured vegetable protein composite food comprising a water absorbable polysaccharide thickener and a water-absorbable textured vegetable protein, wherein, when the textured vegetable protein composite food is formed into a disk having a diameter of 10 mm and a thickness of 1 mm, number of aggregates of the water absorbable polysaccharide thickener with a grain size of 0.1 mm or more as observed in one plane is four or less, classified in at least A23L 33/185.
The inventions are independent or distinct, each from the other because:
Inventions I and II are related as products and processes of making textured vegetable protein composite food product. The inventions are distinct if either or both of the following can be shown: (1) that the process as claimed can be used to make another and materially different product or (2) that the product as claimed can be made by another and materially different process (MPEP § 806.05(f)). In the instant case,
Group II does not require the hydration of the thickener prior to adding the vegetable protein, and can be made, for example, by a method of Ben-Shitrit et al. (WO 2021/095034 A1; See p. 32). The claims of Group II circumscribe a breadth of textured vegetable protein composite food products that are structurally dissimilar from one another such that the search would be burdensome
Restriction for examination purposes as indicated is proper because all the inventions listed in this action are independent or distinct for the reasons given above and there would be a serious search and/or examination burden if restriction were not required because one or more of the following reasons apply:
Invention I would require a search in at least A23L 13/00 and A23J 3/227 along with a unique text search; Invention III would require a search in at least A23L 33/185 along with a unique text search.
Applicant is advised that the reply to this requirement to be complete must include (i) an election of an invention to be examined even though the requirement may be traversed (37 CFR 1.143) and (ii) identification of the claims encompassing the elected invention.
The election of an invention may be made with or without traverse. To reserve a right to petition, the election must be made with traverse. If the reply does not distinctly and specifically point out supposed errors in the restriction requirement, the election shall be treated as an election without traverse. Traversal must be presented at the time of election in order to be considered timely. Failure to timely traverse the requirement will result in the loss of right to petition under 37 CFR 1.144. If claims are added after the election, applicant must indicate which of these claims are readable upon the elected invention.
Should applicant traverse on the ground that the inventions are not patentably distinct, applicant should submit evidence or identify such evidence now of record showing the inventions to be obvious variants or clearly admit on the record that this is the case. In either instance, if the examiner finds one of the inventions unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C. 103 or pre-AIA 35 U.S.C. 103(a) of the other invention.
Applicant is reminded that upon the cancellation of claims to a non-elected invention, the inventorship must be corrected in compliance with 37 CFR 1.48(a) if one or more of the currently named inventors is no longer an inventor of at least one claim remaining in the application. A request to correct inventorship under 37 CFR 1.48(a) must be accompanied by an application data sheet in accordance with 37 CFR 1.76 that identifies each inventor by his or her legal name and by the processing fee required under 37 CFR 1.17(i).
The examiner has required restriction between product or apparatus claims and process claims. Where applicant elects claims directed to the product/apparatus, and all product/apparatus claims are subsequently found allowable, withdrawn process claims that include all the limitations of the allowable product/apparatus claims should be considered for rejoinder. All claims directed to a nonelected process invention must include all the limitations of an allowable product/apparatus claim for that process invention to be rejoined.
In the event of rejoinder, the requirement for restriction between the product/apparatus claims and the rejoined process claims will be withdrawn, and the rejoined process claims will be fully examined for patentability in accordance with 37 CFR 1.104. Thus, to be allowable, the rejoined claims must meet all criteria for patentability including the requirements of 35 U.S.C. 101, 102, 103 and 112. Until all claims to the elected product/apparatus are found allowable, an otherwise proper restriction requirement between product/apparatus claims and process claims may be maintained. Withdrawn process claims that are not commensurate in scope with an allowable product/apparatus claim will not be rejoined. See MPEP § 821.04. Additionally, in order for rejoinder to occur, applicant is advised that the process claims should be amended during prosecution to require the limitations of the product/apparatus claims. Failure to do so may result in no rejoinder. Further, note that the prohibition against double patenting rejections of 35 U.S.C. 121 does not apply where the restriction requirement is withdrawn by the examiner before the patent issues. See MPEP § 804.01.
Status of Claims
Applicant has already elected Group I in the reply filed 03/17/2026. Claims 43-55 are withdrawn pursuant to 37 C.F.R. 1.142(b) as being drawn to non-elected subject matter. The claims corresponding to the elected and rejoined subject matter are Claims 1-42, and are herein acted on the merits.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 12/19/2025, 09/04/2025, 03/07/2024, 02/01/2024, and 02/01/2024 are in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statements were considered by the Examiner.
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 23-42 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 23 is rendered indefinite because of the recitation of “in the step (2), water is (a) added as a hydrated textured vegetable protein given in advance by allowing the water-absorbable textured vegetable protein to absorb water to the hydrated polysaccharide thickener, and/or (b) added to the hydrated polysaccharide thickener simultaneously with the water-absorbable textured vegetable protein, and/or (c) added to the hydrated polysaccharide thickener after addition of the water-absorbable textured vegetable protein”. Because of the recitation of “and/or”, it is unclear how one skilled in the art would add water to the hydrated textured vegetable protein in advance AND add water to the hydrated polysaccharide thickener with the water-absorbable textured vegetable protein simultaneously, AND add the hydrated polysaccharide thickener after addition of the water-absorbable textured vegetable protein. Clarification is needed.
Furthermore, Claim 23 is indefinite because step 1 requires adding water to the thickener to let it absorb the water; step 2 adds the textured vegetable protein and water to the hydrated thickener; and the claim also recites that “in the step (2), water (a) is added as a hydrated textured vegetable protein given in advance by allowing the water-absorbable textured vegetable protein to absorb water to the hydrated polysaccharide thickener.” It is unclear if the water referred to as being absorbed by the hydrated polysaccharide thickener is from the hydrated TVP or not, and it is unclear if this water is in place of the water in step 1). Clarification is requested.
All claims depending from Claim 23 are also rejected.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-22 are rejected under 35 U.S.C. 103 as being unpatentable over Cavallini et al. (US 2005/0003071 A1, cited in IDS), hereinafter Cavallini, as evidenced by Arvidson et al. (Macromolecules 46.1 (2013): 300-309.).
Cavallini discloses a process for making a vegetable base meat analog, comprising sequentially blending methyl cellulose (MCC) into a water/ice mix to form a cream, then blending in a modified gluten, a vegetable protein product having high solubility in water and capable of forming a gel with mild heat treatment, an oil to make an emulsion base, and a modified food starch and flavoring ingredients to form a flavored emulsion base (Abstract). The flavored emulsion base or vegetable base meat analog pieces may be incorporated into a variety of vegetarian food products to improve the texture, mouthfeel and juiciness of the vegetarian food products (Example 1).
Regarding Claims 1 and 22, Cavallini expressly teaches preparing an emulsion base meat analog by first adding about 90% of the total amount of a 50/50 water/ice to a bowl cutter, and then adding 1.5 mass % of methylcellulose with high gelling properties, and fully dispersing by a chopping operation performed at a low knife speed; other ingredients including a vegetable protein component are added to obtain a flavored emulsion base, which can be cooked in an oil bath continuous oven until the core temperature reaches approximately 87.8°C (190°F) to approximately 90.6°C (Example 1). Cavallini also teaches an example the preparation of a vegetable burger patty by hydrating dry extruded soy protein concentrates such as RESPONSE 4402 and RESPONSE 4320 with water at a ratio of two parts water to one part of the soy protein product, and then mixing 30 mass % of hydrated RESPONSE 4402 and 30 mass% of hydrated RESPONSE 4320 with 20 mass% of the flavored emulsion base mixture prepared in Example 1 (Example 2).
The MCC reads on the water-absorbing thickening polysaccharide in Claims 1 and 4. Because the 1.5% MCC is added to 90% of the total water amount, the feature of addition water being added to MCC within 30 seconds is obvious. With regards to the amount of MCC, while Cavallini does not teach an exact amount, it teaches the formulation of the flavor emulsion base to comprise 1.5% MCC. As such, one of ordinary skill in the arts would easily calculate the amount in kilogram depending on the desired amount of formulation.
Regarding Claim 2, Cavallini expressly teaches the ice/water is 55.75% to 1.5% MCC, which is equivalent to 37 part water to 1 part MCC, and which is within the range claimed.
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Regarding Claim 3, Cavallini teaches Methocel from Dow Chemical Co. [0047], which is a powder, as evidenced by Arvidson (p. 302, L. Col., 2nd paragraph).
Regarding Claims 5 and 6, Cavallini teaches MCC which is the same water-absorbable polysaccharide thickener used (Specification, [0084]-[0088]). Cavallini therefore renders obvious the features of Claim 5 “wherein the water-absorbable polysaccharide thickener has thermal gelling ability as a property to gel on being heated in an aqueous solution” and of Claim 6 “wherein a viscosity of the water-absorbable polysaccharide thickener at 20°C when being formulated as a 2% by mass aqueous solution is 2000 mm2/s or more” as these are inherent properties. Because the prior art composition is the identical composition claimed, the composition must necessarily have the characteristics claimed in Claims 5-6. It is noted that In re Best (195 USPQ 430) and In re Fitzgerald (205 USPQ 594) discuss the support of rejections wherein the prior art discloses subject matter, which there is reason to believe inherently includes functions that are newly cited, or is identical to a product instantly claimed. In such a situation the burden is shifted to the applicants to “prove that subject matter to be shown in the prior art does not possess the characteristic relied on” (205 USPQ 594). There is no requirement that a person of ordinary skill in the art would have recognized the inherent disclosure at the time of invention, but only that the subject matter is in fact inherent in the prior art reference.
Regarding Claims 7 and 8, Cavallini teaches using RESPONSE® 4402 and RESPONSE® 4320 soy protein concentrates, which are granular in structure [0040].
Regarding Claim 9, Cavallini teaches blending the vegetable protein into the MCC cream with gluten, and adding oil and other ingredients, then the rest of water/ice (Example 1).
Regarding Claim 10, Cavallini also teaches an example the preparation of a vegetable burger patty by hydrating dry extruded soy protein concentrates such as RESPONSE 4402 and RESPONSE 4320 with water at a ratio of two parts water to one part soy protein product, and then a portion is added to the flavored emulsion base (Example 2).
Regarding Claim 11, Cavallini teaches 16% wt. of vegetable protein product and the remaining 10% of total water/ice mix, which appears to fall within the claimed range (Example 1).
Regarding Claim 12, Cavallini teaches initially adding 90% of the total water, and then adding the remaining 10% in a separate step, thereby reading on the A:B claimed.
Regarding Claim 13 and 16-17, Cavallini teaches the formulation having 16% vegetable protein product and 1.5% MCC (Table 1). By Examiner’s calculation, this is 0.09 part water-absorbable polysaccharide thickener to one part water-absorbable textured vegetable protein, which falls within the claimed range in Claim 13. The 1.5% MCC is within the claimed range in Claim 16. The 16% vegetable protein product is within the claimed range in Claim 17.
Regarding Claims 14-15, Cavallini does not require heating, and only recites that the flavored emulsion base may be cooked after everything has been mixed in, and the flavored emulsion base fully prepared, and also as part of the food product (Examples 1 and 2).
Regarding Claims 18 and 38, Cavallini teaches mixing the water with MCC, and that after 3-5 minutes, methylcellulose increases in volume [0047]. Mixing encompasses stirring, and as such, Cavallini renders obvious the feature of employing a stirring time of 15 minutes or less while and/or after the water-absorbable polysaccharide thickener is allowed to absorb water by adding water thereto.
Regarding Claims 19-20, Cavallini expressly teaches the process and formula for making an emulsion base meat analog, for example, vegetable burger patties and vegetarian sausage (Examples 1 and 4).
Regarding Claim 21, Cavallini teaches incorporating starch, oil and spice etc. in its formulation (Tables I and II).
Regarding Claim 23, Cavallini also teaches hydrating soy protein concentrates such as RESPONSE 4402 and RESPONSE 4320 with water first prior to mixing with the flavored emulsion base mixture prepared in Example 1 (Example 2).
Cavallini has taught all the features claimed in Claims 24-42.
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JANICE Y SILVERMAN whose telephone number is (571)272-2038. The examiner can normally be reached M-F, 10-6 EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Erik Kashnikow can be reached on (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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/J.Y.S./Examiner, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792
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