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 .
DETAILED ACTION
2. Applicants’ arguments and amendments filed on 12/02/2025, overcomes the rejections of record. However, examiner has considered additional prior arts with different combinations to address independent claims 1, 14, 19 to make new ground of rejection which will address prior claims in order to strengthen the rejections of record. Therefore, the following action is made as non - final.
Any objections and/or rejections made in the previous action, and not repeated below, are hereby withdrawn.
Status of the application
3. Claims 1-3, 6-17, 19-30 are pending in this office action.
Claims 1-3, 6-17, 19-30 have been rejected.
Claim Rejections - 35 USC § 103
4. 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.
5. 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.
6. 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.
7. Claims 1, 3, 6- 10, 13, 14- 17 are rejected under 35 U.S.C. 103 (a) as being unpatentable over Nord (US 2,450,055) in view of John et al. (KR 2013/0055597 A) in view of Christopher et al.GB 2551964 A and further in view of Brooks et al. (AU 2015/271929 A).
8. Regarding claims 1, 14, Nord et al. discloses that the fungal mat is removed for the culture medium, washed, dried and ground into a fine flour (col 3 lines 42-45). Nord et al. also discloses that Fusarium lini (i.e. Fusarium spp.) is used to produce said filamentous fungal flour in an amount of 10 to 40 percent as protein and B-complex vitamin supplying ingredient with other food composition (at least in claim 6 of Nord et al. and in Example 1). Therefore, it meets claims 1, 14. It also meets claim limitation of “filamentous fungal mycelial biomass flour about 5-30% by weight of the flour composition” of claim 1. 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).
Nord et al. is silent about (i) “eliminate cell viability” and (ii) Particle size between 0.03 to 0.4 mm and (iii) Non-fungal-flour as claimed in claim 1.
With respect to (i), Nord et al. discloses drying step and its use as flour in food composition ( col 3 lines 40-45). Therefore, Nord et al. is broad and it can be non -viable Fusaria in the form of the flour to be used in food composition.
However, to be more specific, Christopher et al. discloses that heating fungal biomass by steam treatment is performed to treat (page 4 last two paragraph) and then this steam treated biomass is dewatered biomass having less than 2% RNA content with the removal of water after steaming step and removal of water can be done by centrifugation also at the step (iii) to isolate dewatered biomass (page 5 paragraphs 1-4 and page 4, last paragraph). The steam treated RNA removed dewatered fungal biomass is in the form of paste (page 8, last paragraph). It is understood that that the release of RNA from within the cell makes non -viable cell.
One of ordinary skill in the art before the effective filling date of the claimed invention would have been motivated to modify Nord et al. with the teaching of Christopher et al. to perform steam treatment in order to have reduction of RNA content to have minimal amount of RNA content in the steam treated product and the step also reduces some moisture in the steam treated biomass using centrifugal separation of liquid from steam treated biomass (page 5 paragraphs 1-5, 9, 10) and the partial dewatered biomass with RNA removal (less than 2 wt.%) is enriched with nutritional contents in concentrated form as paste (page 8 last paragraph).
It is to be noted that Christopher et al. discloses an upgraded method of Warde et al. (WO 95/23843) to have better yield of the final product (in Christopher page 3, 3rd and 4th paragraph) which is applicants admitted prior art for steam treatment to eliminate cell viability (in PGPUB 0083]).
With respect to (ii) and (iii), John et al. discloses an algal biomass as algal flour comprising higher carbohydrate with protein and lipid etc. (at least in pages 21, fifth paragraph, page 22 second paragraph page 25) can be made recovered by inactivating biomass (page 26 continued to page 27, e.g. under Section III, paragraph 3, “mostly lyzed cells” and Under IIIA. “Algae powder”) and is used as food or in food composition for human consumption (page 6 under “Detailed Description of the invention).
It is to be noted that the disclose “algal biomass” in the form of flour reads on “non-fungal flour” of claim 1.
It is also to be noted that John et al. also discloses that the particle size of such composition is less than 1,000 microns (i.e. <1 mm) (at least on page 6, second paragraph) to meet claim limitation of “particle size between 0.03 mm to 0.4 mm” as claimed in claim 1. Therefore, one of ordinary skill in the art would have been motivated to modify disclosed Fusaria flour of Nord et al. to ground to a powder form by including the teaching of John’s identical range of algal flour as disclosed by John et al. in order to have a homogeneous particle size containing combined fungal and non-fungal flour for its use in food composition. This meet claimed “Particle size” of fungal mycelial biomass flour” of claims 1, 14.
With respect to (iii), as discussed above, John’s algal flour therefore, meets the claim limitation of “Non-fungal flour”.
Nord et al. teaches that the powdered mycelia of Fusarium fungal powder can be combined with other food constituents preferably with carbohydrates (col 3 lines 42-46). Therefore, non-fungal algae powder with carbohydrate as disclosed by John et al. is suitable to be combined to have balanced and complete nutritional flour product ( in John et al. at least page 3, Under “summary of the invention, paragraph 3,4). Therefore, Nord et al. is used as primary prior art.
One of ordinary skill in the art before the effective filling date of the claimed invention would have been motivated to modify Nord’s protein , vitamin enriched Fungal flour (Nord et al.at least in claim 3 of Nord et al. ) with John’s similar particle size containing non-fungal algae flour having homogeneous particle size and also having enriched nutritional components including carbohydrate, fiber etc. contributed both by algal flour (in John et al. at least page 3, Under “summary of the invention, paragraph 3,4) .
(Additionally), It is to be noted that the food composition of Nord et al. can include addition of other food constituents also (at least in claim 6 of Nord et al.) including wheat flour also.
Brooks et al. discloses that the flour composition of claim 1 can be combined with chick pea gluten free flour to make desired choice of non-fungal flour which is vegan and also can be used for specific purpose e.g. to make baked product , bread etc. to meet claims 15, 16 (at least claims 63,56, 65 of Brooks et al.).
One of ordinary skill in the art before the effective filling date of the claimed invention would have been motivated to modify Nord et al. to include the teaching of Brooks et al. to consider other additional gluten-free flour component from plant origin for vegan (at least claim 63 of Brooks et al.) which is suitable for its use for specific foods e.g. to provide texture and organoleptic properties for baked product , bread etc. (at least claims 63,56, 65 of Brooks et al.) for specific need including its use as vegan food also.
9. Regarding claim 3, John et al. also discloses that flour composition such an algal flour can have moisture content 3-5% after drying (at least in page 7, paragraph 4, above the heading “III A. Algae Powder) to meet claim 3. Therefore, it would have been obvious to one of ordinary skill in the art to consider dried Nord’s fungal product may be dried to have the same moisture content suitable to grind to make same dried form of mixed flour composition of claim 1.
Regarding the moisture content, it is also within the skill of one of ordinary skill in the art to dry in a way with minimal moisture so that the dry form after grinding will remain and will maintain the flour (powder) form.
Absent showing of unexpected results, the specific amount of moisture is not considered to confer patentability to the claims. As the texture (i.e., flour or powder form) are variables that can be modified, among others, by adjusting the amount of moisture, the precise amount would have been considered a result effective variable by one having ordinary skill in the art at the time the invention was made. As such, without showing unexpected results, the claimed amount cannot be considered critical.
Accordingly, one of ordinary skill in the art at the time the invention was made would have optimized, by routine experimentation, the amount of moisture in Nord et al., to amounts, including that presently claimed, in order to obtain the desired effect e.g., desired powdered, flour texture etc. (In re Boesch, 617 F.2d. 272, 205 USPQ 215 (CCPA 1980)), since it has been held that where the general conditions of the claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. (In re Aller, 105 USPQ 223).
10. Regarding claim 6, Nord et al. discloses the filamentous fungal is Fusarium spp. ( at least in Title, col 1 lines 42-43 under Example).
11. Regarding claims 7, 8, 13, 15, 16 , as discussed for claim 1 above, Brooks et al. discloses that the flour composition of claim 1 can be combined with chick pea gluten free flour to make desired choice of non-fungal flour which is vegan which meets claims 7, 8, and also can be used for specific purpose e.g. to make baked product , bread etc. to meet claims 15, 16 (at least claims 63,56, 65 of Brooks et al.). Therefore, the food composition is also free of milk or milk solids to meet claim 13.
One of ordinary skill in the art before the effective filling date of the claimed invention would have been motivated to modify Nord et al. to include the teaching of Brooks et al. to consider other additional gluten-free flour component from plant origin for vegan (at least claim 63 of Brooks et al.) which is suitable for its use for specific foods e.g. to provide texture and organoleptic properties for baked product , bread etc. (at least claims 63,56, 65 of Brooks et al.) for specific need including its use as vegan food also.
12. Regarding claims 9, 17, Nord et al. discloses that the composition can include salts, sugar etc. (at least in col 3 lines 10-12).
13. Regarding claim 10, Nord et al. also discloses that it is dried mycelia which is in powder form ( col 3 lines 41-43).
14. Regarding claim 14, claim 14 has identical claim limitations of claim 1. Therefore, the rejections made for those identical claim limitations for claim 1 is applicable to claim 14. In addition, the claim limitation “wherein the presence of the filamentous fungal mycelial biomass flour is not detectable by taste in the food product” as claimed in claim 14 is addressed using Nord et al. Nord et al. discloses that Fusarium spp. has a pleasant stimulating odor which makes them readily acceptable as food and overcomes the difficulties and objections raised against yeast etc. (col 1 lines 22-26). Nord et al. also discloses that this filamentous fungal mycelial biomass as dry powder (i.e., flour) form (col 3 lines 40-45) can be used in an amount from 10 wt.% to 40 wt.% in the food composition (at least in claim 2 of Nord et al.) which meets claimed range amount of claim 14. Therefore, it meets the claim limitation “wherein the presence of the filamentous fungal mycelial biomass flour is not detectable by taste in the food product” as claimed in claim 14.
15. Claims 2, 11, 12 are rejected under 35 U.S.C. 103 as being unpatentable over Nord (US 2,450,055) in view of John et al. (KR 2013/0055597 A) in view of Christopher et al.GB 2551964 A as applied to claim 1 and further in view of Kozubal et al. (US 2016/0002680).
16. Regarding claims 2, 6, 11, 12, Nord et al. discloses Fusarium lini ( Col 1, line 42) having very high protein and vitamin source (at least in claims 4, 6 of Nord et al.). However, Nord et al. in view of John et al. and Christopher and Brooks et al. are silent about “the protein content of at least about 46% by weight”.
Kozubal et al. discloses that Fusarium oxysporum fungal strain ([0165]) as one of the fungal species can be used to produce fungal biomass as protein and lipid source (at least in [0224], [0228]). It is evidenced by applicants’ specification that the identical Fusarium oxysporum strain has 6-11% by weight lipid and 46-51% by weight of protein (at least in PGPUB, in [0011]).
Even if Kozu Bal et al.’680 does not specifically mention the amounts of protein and lipid as claimed in claims 2, 11, however, once Kozubal et al.’680 modifies Nord et al. with Kozubal et al.’680 will have fungal biomass flour protein content greater than 46% and lipid 6-11% by weight to be considered as desired choice. It is also to be noted that the disclosed Fusarium oxysporum of Kobuzal et al. will have inherent amount of these two components as evidenced by applicants specification that the identical Fusarium oxysporum strain has 6-11% by weight lipid and 46-51% by weight of protein (at least in [0011]).
One of ordinary skill in the art before the effective filling date of the claimed invention would have been motivated to modify Nord et al. with the teaching of Kozubal et al.’680 to consider and select MK7 as the source of mycelial biomass in order to have the enriched source of both high protein as biomass and in combination with lipid source ([0228]).
17. Claims 19, 20, 22, 23-27, 29, and 30 are rejected under 35 U.S.C. 103 as being unpatentable over Nord et al. in view of Christopher et al.GB 2551964 A in view of John et al. (KR 2013/0055597 A).
18. Regarding claims 19, 20, 22, 25, Nord et al. discloses that fungal genus Fusarium is good for food because their mycelial has good nutritional value (col 1 lines 20-25). Nord et al. also discloses that the fungal mat is removed for the culture medium, washed, dried and ground into a fine flour (col 3 lines 42-45). It is to be noted that drying followed by grinding can read on claimed dehydration followed by “size reduction” steps of claim 19.
Therefore, Nord et al. discloses the steps of dehydration and size reduction as claimed in claim 19.
Nord et al. also discloses Fusarium spp which includes Fusarium lini is used to produce said fungal flour is used in food composition (Example 3, col 3 lines 40-45). Therefore, it meets claim 20.
It is known that grinding reduces the size of the dried mycelial biomass. Therefore, it meets claim 25.
Nord et al. is silent about the steps of (i) steaming, (ii) cooling prior to dehydrating step.
Christopher et al. discloses that heating fungal biomass by steam treatment is performed to treat (page 4 last two paragraph) and then this steam treated biomass is dewatered biomass having less than 2% RNA content with the removal of water after steaming step and removal of water can be done by centrifugation also at the step (iii) to isolate dewatered biomass (page 5 paragraphs 1-4 and page 4, last paragraph). The steam treated RNA removed dewatered fungal biomass is in the form of paste (page 8, last paragraph). It is understood that that the release of RNA from within the cell makes non -viable cell.
One of ordinary skill in the art before the effective filling date of the claimed invention would have been motivated to modify Nord et al. with the teaching of Christopher et al. to perform steam treatment in order to have reduction of RNA content to have minimal amount of RNA content in the steam treated product and the step also reduces some moisture in the steam treated biomass using centrifugal separation of liquid from steam treated biomass (page 5 paragraphs 1-5, 9, 10) and the partial dewatered biomass with RNA removal (less than 2 wt.%) is enriched with nutritional contents in concentrated form as paste (page 8 last paragraph).
It is to be noted that Christopher et al. discloses an upgraded method of Warde et al. (WO 95/23843) to have better yield of the final product (in Christopher page 3, 3rd and 4th paragraph) which is applicants admitted prior art for steam treatment to eliminate cell viability (in PGPUB 0083]).
Regarding the “cooling step”, it would have been obvious that the isolation of RNA reduced fungal biomass by centrifugation is performed at room temperature after completion of steam treatment steps as discussed above. Therefore, it reads on ‘Cooling the filamentous fungal biomass’ as claimed in claim 19.
However, further dehydration is necessary in order to make powdered flour from dewatered steam treated fungal biomass with minimal RNA content (page 5, paragraphs 9, 10 in Christopher et al.) needs further step to dehydrate sufficiently in order to make dry form to have minimal or no moisture content.
Although Nord et al. discloses dried to powder form (col 3 lines 42-45), however, more specifically, John et al. is used in this respect in order to have a guideline to one of ordinary skill in the art to perform drying at a certain minimal amount of residual moisture content with the size reduction to a certain degree in order to have texture of a flour. .
John et al. discloses that an algal flour can have moisture content 3-5% after drying (at least in page 7, paragraph 4, above the heading “III A. Algae Powder) to meet claim limitation of “dehydrating step”. Therefore, this moisture content can make filamentous fungal flour of claim 19. Also, the range amount of moisture content is encompassed by the claimed range amount of moisture content of claim 22.
Even if John teaches inactivated algal biomass, and not fungal biomass, can be converted to size reduction to have particles which is flour , however, it is within the skill of one of ordinary skill in the art to use the teaching of John et al. to make the desired particle size containing dried product as flour from Fusarium spp. of Nord in order to have similar texture of flour by reducing size of dried fungal mycelial biomass.
According to MPEP 2143.01, “Obviousness can be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so. In re Kahn, 441 F.3d 977, 986, 78 USPQ2d 1329, 1335 (Fed. Cir. 2006) (discussing rationale underlying the motivation-suggestion-teaching test as a guard against using hindsight in an obviousness analysis)”. This meet claims 22, 23.
19. Regarding claim 22, in addition to the discussion above, it is also to be noted that within the skill of one of ordinary skill in the art to dry in a way with minimal moisture so that the dry form after grinding will remain and will maintain the flour (powder) form.
Absent showing of unexpected results, the specific amount of moisture is not considered to confer patentability to the claims. As the texture (i.e., flour or powder form) are variables that can be modified, among others, by adjusting the amount of moisture, the precise amount would have been considered a result effective variable by one having ordinary skill in the art at the time the invention was made. As such, without showing unexpected results, the claimed amount cannot be considered critical. Accordingly, one of ordinary skill in the art at the time the invention was made would have optimized, by routine experimentation, the amount of moisture in Ulziijargal et al. in view of Nord et al., to amounts, including that presently claimed, in order to obtain the desired effect e.g., desired powdered, flour texture etc. (In re Boesch, 617 F.2d. 272, 205 USPQ 215 (CCPA 1980)), since it has been held that where the general conditions of the claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. (In re Aller, 105 USPQ 223).
20. Regarding claim 23, John et al. also discloses that the particle size of such composition is less than 1,000 microns (i.e. <1 mm) (at least on page 6, second paragraph). Therefore, it reads on “size reduction” as claimed in claim 19 and size is 0.03 mm to 0.4 mm as claimed in claim 23. 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).
Even if John teaches inactivated algal biomass, and not fungal biomass, can be converted to size reduction to have particles which is flour , however, it is within the skill of one of ordinary skill in the art to use the teaching of John et al. to make the desired particle size containing dried product as flour from Fusarium spp. of Nord in order to have similar texture of flour by reducing size of dried fungal mycelial biomass.
According to MPEP 2143.01, “Obviousness can be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so. In re Kahn, 441 F.3d 977, 986, 78 USPQ2d 1329, 1335 (Fed. Cir. 2006) (discussing rationale underlying the motivation-suggestion-teaching test as a guard against using hindsight in an obviousness analysis)”.
One of ordinary skill in the art before the effective filling date of the claimed invention would have been motivated to modify Nord’s protein , vitamin enriched Fungal flour (Nord et al.at least in claim 3 of Nord et al. ) with John’s similar particle size containing non-fungal algae flour having homogeneous particle size and also having enriched nutritional components including carbohydrate, fiber etc. contributed both by algal flour (in John et al. at least page 3, Under “summary of the invention, paragraph 3,4) .
21. Regarding claim 26, Nord et al. teaches that the powdered mycelia of Fusarium fungal powder can be combined with other food constituents preferably with carbohydrates (col 3 lines 42-46). Therefore, non-fungal algae powder with carbohydrate as disclosed by John et al. is suitable to be combined to have balanced and complete nutritional flour product ( in John et al. at least page 3, Under “summary of the invention, paragraph 3,4). Therefore, Nord et al. is used as primary prior art.
One of ordinary skill in the art before the effective filling date of the claimed invention would have been motivated to modify Nord’s protein , vitamin enriched Fungal flour (Nord et al.at least in claim 3 of Nord et al. ) with John’s similar particle size containing non-fungal algae flour having homogeneous particle size and also having enriched nutritional components including carbohydrate, fiber etc. contributed both by algal flour (in John et al. at least page 3, Under “summary of the invention, paragraph 3,4) .
One of ordinary skill in the art will consider to modify Nord et al. with the teaching of John et al. to perform grinding to a particle size less than 1 mm matching with the disclosed algae powder (i.e. non-fungal flour) with a reasonable expectation of success to make filamentous fungal biomass particles having less than 1 mm size in order to have flour texture of the filamentous fungal biomass particles as claimed in claim 19 and also the homogeneous mixed combined mass of the filamentous fungal biomass particles and the non-fungal flour” as claimed in claim 26.
One of ordinary skill in the art before the effective filling date of the claimed invention would have been motivated to modify Nord et al. with the teaching of John et al. to perform grinding to a particle size less than 1 mm matching with the disclosed algae powder (i.e. non-fungal flour) in order to have flour texture of the filamentous fungal biomass particles as claimed in claim 19 and also the homogeneous mixed combined mass of the filamentous fungal biomass particles and the non-fungal flour” as claimed in claim 26.
22. Regarding claim 27, Nord et al. also discloses that Fusarium lini is used to produce said filamentous fungal flour in an amount of 10 to 40 percent as protein and B-complex vitamin supplying ingredient with other food composition (at least in claim 6 of Nord et al. and in Example 1). Therefore, it meets claim limitation of “about 5-30% by weight of the flour composition” of claim 27.
23. Regarding claim 29, it would have been obvious that the filamentous fungal flour, as such, is a food composition and is vegan to meet claim 29.
24. Regarding claim 30, Nord et al. discloses that the composition can include salts, sugar etc. (at least in col 3 lines 10-12).
25. Claim 21 is rejected under 35 U.S.C. 103 as being unpatentable over Nord et al. in view of Christopher et al.GB 2551964 A in view of John et al. (KR 2013/0055597 A) in view of Christopher et al.GB 2551964 A as applied to claim 19 and further in view of as applied to claim 19 and further in view of Royer et al. F1 119437 B and as evidenced by NPL Essential amino acid.
26. Regarding claim 21, Nord is specifically silent about claim limitation of “essential amino acid” as claimed in claim 21.
Royer et al. discloses that Fusarium oxysporum is the source of essential amino acid (e.g. at least in “or a fragment thereof has an essential amino acid” (page 3, fourth paragraph). It is also evidenced by NPL Essential amino acid that Fusarium spp.is the source of all essential amino acids (page 1).
One of ordinary skill in the art before the effective filling date of the claimed invention would have been motivated to modify Nord et al. to include the teaching of Royer et al. to incorporate algal flour from Fusarium spp. in order to have essential amino acid as nutritional element in the food (at least in page 3, fourth paragraph).
27. Claim 24 is rejected under 35 U.S.C. 103 as being unpatentable over Nord et al. in view of Christopher et al.GB 2551964 A in view of John et al. (KR 2013/0055597 A) in view of Christopher et al.GB 2551964 A as applied to claim 19 and further in view of Kozubal et al. (US 2016/0002680).
28. Regarding claim 24, Nord et al. is silent about “the protein content of at least about 46% by weight”.
Kozubal et al. discloses that Fusarium oxysporum (Lycoperischi) fungal strain ([0165]) as one of the fungal species can be used to produce fungal biomass as protein and lipid source (at least in [0224], [0228]). It is evidenced by applicants’ specification that the identical Fusarium oxysporum strain has 6-11% by weight lipid and 46-51% by weight of protein (at least in PGPUB, in [0011]).
One of ordinary skill in the art before the effective filling date of the claimed invention would have been motivated to modify John et al. with the teaching of Kozubal et al.’680 to consider Fusarium oxysporum as the source of mycelial biomass in order to have the enriched source of both high protein source as biomass and in combination with lipid source ([0228]).
Even if Kozubal et al.’680 does not specifically mention the amounts of protein and lipid as claimed in claim 24, however, once Kozubal et al.’680 modifies Nord et al., Nord et al. in view of Kozubal et al.’680 will have fungal biomass flour protein content greater than 46% and lipid 6-11% by weight because the disclosed Fusarium oxysporum will have inherent amount of these two components as evidenced by applicants specification that the identical Fusarium oxysporum strain has 6-11% by weight lipid and 46-51% by weight of protein and all essential amino acids (at least in [0011]). It is also optimizable.
Absent showing of unexpected results, the specific amount of drying is not considered to confer patentability to the claims. As the protein content are variables that can be modified, among others, by adjusting the amount moisture and drying conditions (Medoff et al., [0670]), the precise amount would have been considered a result effective variable by one having ordinary skill in the art at the time the invention was made. As such, without showing unexpected results, the claimed amount cannot be considered critical. Accordingly, one of ordinary skill in the art at the time the invention was made would have optimized, by routine experimentation, the amount of protein content in Nord et al. to amounts, including that presently claimed, in order to obtain the desired effect e.g., protein amount, moisture content etc. (5). (In re Boesch, 617 F.2d. 272, 205 USPQ 215 (CCPA 1980)), since it has been held that where the general conditions of the claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. (In re Aller, 105 USPQ
223).
29. Claim 28 are rejected under 35 U.S.C. 103 as being unpatentable over Nord et al. in view of Christopher et al.GB 2551964 A in view of John et al. (KR 2013/0055597 A) in view of Christopher et al.GB 2551964 A as applied to claim 19 and further in view of Brooks et al. AU 2015/271929 A.
30. Regarding claims 26, 28, Nord et al. discloses that fungal flour can be combined with other food comp[osition (at least in claims 4,6 of Nord et al.).
However, Nord et al. is specifically silent about non-fungal flour in the food composition.
Brooks et al. discloses that fungal flour can be combined with other flour including chickpea gluten-free flour (at least in claim 63 of Brooks et al.) to make desired gluten free food product from flour origin e.g. bread, baked product etc. (at least in claim 56 of Brooks et al.).
One of ordinary skill in the art before the effective filling date of the claimed invention would have been motivated to modify algal flour of Nord et al. to include the teaching of Brooks et al. to consider other non-fungal flour e.g. chickpea gluten-free flour (at least in claim 63 of Brooks et al.) to make desired gluten free food product from flour origin in order to provide texture and organoleptic properties to make bread, baked product etc. (at least in claim 56 of Brooks et al.).
Pertinent Notes
32. Finnigan et al. (US 2019/0223485 in Patent family WO /2018/002587 has Publication date April 4, 2018) is another prior art.
However, Finnigan ( 2019/0223485) discloses 30-95% [0010] mycelial biomass flour and foodstuff comprises less than 25 wt.% on a dry wt. basis ([0011]-[0012]). Claim 1 claims lower 5-30 wt.% and flour plus non fungal flour . So, Nord et al. considered more appropriate primary prior art because Nord et al. discloses 10-40wt.% fungal powder (claim 3 of Nord et al.). primary reference. Nord teaches coherent mat and can be separated from the culture media and dried mycelial ground (i.e. size reduction) ( Nord. et al. col 3 lines 40-50). Finnings does not teach powdered fungal flour in combination with non-fungal flour to be used in food composition. Nord et al. teaches that the powdered mycelia of Fusarium fungal powder can be combined with other food constituents preferably with carbohydrates (col 3 lines 42-46) to be used in food composition. Therefore, non-fungal algae powder with carbohydrate as disclosed by John is suitable to combine with Nord et al. Therefore, Nord et al. is used as primary prior art.
Response to arguments
33. Applicants’ arguments have been considered. As mentioned above, examiner has considered additional prior arts with different combinations to make new ground of rejection. Therefore, the following action is made as non - final.
34. Applicants argued that “First John discloses algal flour” and not fungal mycelial flour (Fifth page third paragraph).
In response, John et al. discloses algal flour to address (a) non-fungal flour to meet claim 1. Also, John’s particle size etc. meets claimed particle size and it is within the skill of one of ordinary skill in the art to modify Nord’s fungal flour into same disclosed particle size of John et al. in order to make homogeneous particle size containing combined fungal and non-fungal flour used in food composition. Details are discussed in the office action above.
35. Applicants argued on sixth page, in remarks that,
(a) “Second John does not teach filamentous fungal mycelial biomass is non -viable” (Sixth page).
(b) “ Third Nord et al. does not teach dried and ground form of fungal flour of Nord is non-viable”.
In response, it is to be noted that Nord is a broad disclosure. Therefore, Nord’s dried and ground form of fungal flour may be non-viable also. However, more specifically, examiner used one another secondary prior art by Christopher et al. to reject independent claims 1,14 to address “eliminate fungal cell viability” as claimed in claim 1, 14. Christopher et al. was used in the last office action to reject claim 19.
Examiner has made new approach to address both the independent claims 1, 14 and 29.
37. It is also to be noted that and as mentioned in the office action above that Christopher et al. discloses an upgraded method of Warde et al. (WO 95/23843) to have better yield of the final product (in Christopher page 3, 3rd and 4th paragraph) which is applicants admitted prior art for “steam treatment” “to eliminate cell viability” (in PGPUB 0083]). Therefore, Christopher et al. is used as secondary prior art to reject independent claims 1, 14 and 19. However, Christopher et al. was used to reject claim 19 in the last office action.
Therefore, the rejection is made as non-final.
Conclusion
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/BHASKAR MUKHOPADHYAY/
Examiner, Art Unit 1792