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 .
Status of the Claims
The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 1-12 and 22-29
Withdrawn claims: None
Previously canceled claims: None
Newly canceled claims: 13-21
Amended claims: 1-8 and 11
New claims: 22-29
Claims currently under consideration: 1-12 and 22-29
Currently rejected claims: 1-12 and 22-29
Allowed claims: None
Election/Restrictions
Applicant’s election without traverse of Group I, claims 1-12 and new claims 22-29 in the reply filed on 1 May 2026 is acknowledged.
Claims 13-21 were canceled by Applicant in the reply filed on 1 May 2026.
Claim Objections
Claims 2, 5, 6, and 12 are objected to because of the following informalities:
In claim 2, “from oxyhydrogen microorganism” should read, “from an oxyhydrogen microorganism”.
In claim 5, “…comprises microbial biomass, wherein the microbial biomass comprises oxyhydrogen microorganism cell mass, protein from an oxyhydrogen microorganism, and pea protein” should read, “…comprises microbial biomass, wherein the microbial biomass comprises oxyhydrogen microorganism cell mass and protein from an oxyhydrogen microorganism; and pea protein” to be supported by the written description (e.g. at [09] of the instant specification). That is, the first protein layer comprises microbial biomass and pea protein, not that the microbial biomass comprises pea protein.
In claim 6, “or combination of any two or more thereof.” should read, “or a combination of any two or more thereof.”
In claim 12, the genus names should be italicized to conform with accepted taxonomical convention.
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.
Claims 1-12 and 22-29 are rejected under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor regards as the invention.
Claim 1 recites the limitation “adhesive composition” in line 11. There is insufficient antecedent basis for this limitation in the claim. Applicant may overcome this rejection by amending the claim to instead recite, “adhesive layer”. For purposes of examination, the claim is construed as suggested for amendment.
Claims 2-12 and 22-29 are rejected due to their dependency from claim 1.
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 1, 9-11, and 22-29 are rejected under 35 U.S.C. 103 as being unpatentable over Ong (WO 2022/189505 A1).
Regarding claim 1, Ong teaches a structured food product, comprising: two or more layers of a rolled dough composition comprising a first protein layer and an adhesive layer – Ong discloses “…scalable methods for the production of artificial meat products that mimic the appearance, texture, and mouthfeel (ATM) of natural meat cuts. These methods involve providing multiple building blocks of edible protein, such as grooved sheets, fibrils or fibres of edible protein, and combining the building blocks with an edible binder to produce the artificial meat product.” (Abstract). Ong states, “A sixth aspect of the invention provides an artificial meat product comprising a stack of sheets of edible protein, each sheet in the stack having a grooved surface, the sheets being bound together with an edible binder.” (p. 2, ¶ 8). The disclosed edible binder between the protein sheets reads on the claimed “adhesive layer”.
Regarding “dough composition”, it is considered that in order to be formed into a sheet, the protein composition must comprise at least protein and some amount of moisture. The instant specification at paragraph [75] provides, “The term "dough" as used herein refers to a blend of dry ingredients ("dry mix"; e.g., proteins, carbohydrates, and lipids including liquid oils) and liquid ingredients ("liquid mix"; e.g., water or juice, such as a liquid based extract from a non-animal source such as a plant or any part of a plant).” Therefore, although not explicitly called a “dough” by Ong, the protein composition that is formed into a sheet reads on a dough as claimed.
Regarding that the claimed dough composition is “rolled”, this feature is a product-by-process limitation. It is noted that “[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process”, In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985). Further, “although produced by a different process, the burden shifts to applicant to come forward with evidence establishing an unobvious difference between the claimed product and the prior art product”, In re Marosi, 710 F.2d 798, 802, 218 USPQ 289, 292 (Fed. Cir.1983). See MPEP § 2113.
Therefore, absent evidence of criticality regarding the presently claimed “rolled” dough composition, and given that Ong meets the requirements of the claimed composite of two or more layers comprising a first protein layer and an adhesive layer, Ong clearly meets the requirements of present claim 1.
Nonetheless, Ong further teaches, “The sheets may be formed by any convenient technique, such as extrusion, casting, moulding, or calendaring.” (p. 10, ¶ 2). Calendaring is a means of rolling. Therefore, where calendaring is disclosed as a suitable method by which to produce the protein sheets, it would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to use rolled protein sheets.
wherein:
the adhesive layer is between two or more protein layers, wherein two or more protein layers comprise the first protein layer, the adhesive layer adheres the two or more protein layers together to form the structured food product – Ong teaches that the binder is applied to the surface of a sheet of edible protein, layering a further sheet of edible protein onto the binder coated surface, and optionally repeating the layering of binder and sheets of edible protein to form the artificial meat product (p. 8, ¶ 5).
and the protein in the first protein layer is from a microorganism, plant, alga, fungus, or combination of any two or more thereof – Ong teaches that “[b]uilding blocks [i.e., sheets] as described herein may comprise or consist of edible protein. Any source of edible protein may be employed. The edible protein may include any protein suitable for dietary consumption, for example plant protein, microorganism protein, animal cell protein and/or meat protein.” (p. 5, ¶ 4). “In particular, microorganism protein may be obtained/derived from algae, microalgae, cyanobacteria, yeast or fungi.” (p. 5, ¶ 6).
MPEP § 2144.07 states, “The selection of a known material based on its suitability for its intended use support[s] a prima facie obviousness determination”. Since Ong discloses the claimed protein from a microorganism, plant, alga, fungus, or combination of any two or more thereof being suitable materials for use in a protein sheet (i.e., first protein layer), it would have been prima facie obvious to select any of these proteins or combinations thereof to prepare the protein sheets of Ong.
Claim 1 is therefore rendered obvious.
Regarding claim 9, Ong teaches the structured food product of claim 1, wherein the structured food product is a meat analogue.
As described regarding claim 1, Ong discloses “…scalable methods for the production of artificial meat products that mimic the appearance, texture, and mouthfeel (ATM) of natural meat cuts. (Abstract). These artificial meat products are meat analogues.
Therefore, where claim 1 is obvious, so too is claim 9.
Regarding claim 10, Ong teaches the structured food product of claim 1.
Ong further does not explicitly state that the structured food product is a chicken breast analogue.
However, Ong teaches that the artificial meat products mimic the appearance, texture and mouthfeel of natural meat cuts (Abstract), discloses a chicken meat analogue (p. 7, ¶ 2; p. 15, last ¶), teaches adding coloring to mimic artificial white meat (p. 6, ¶ 4), and teaches that the meat cut can be cut into desired shape and size (p. 19, last ¶). Therefore, where chicken breast is a well-known white meat cut, it would have been within the skill and obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to prepare a chicken breast analogue as claimed in order to provide consumers with a chicken breast meat alternative. One of ordinary skill in the art would have had a reasonable expectation of success in arriving at the claimed invention because Ong teaches one of ordinary skill the essential elements of chicken meat analog, white meat, and shaping, required for preparing a chicken breast analog.
Claim 10 is therefore rendered obvious.
Regarding claim 11, Ong teaches the structured food product of claim 1, wherein a protein layer of the two or more protein layers is between about 0.1 mm to about 5 mm in thickness.
Ong teaches, “Suitable sheets may have a thickness of 1-1000 µm.” (p. 8, ¶ 3; claim 4). The claimed range of about 0.1 mm to about 5 mm (i.e., about 100 µm to about 5000 µm) overlaps the disclosed range. In a case where the claimed ranges overlap or lie inside ranges disclosed by the prior art, a prima facie case of obviousness exists, MPEP § 2144.05(I).
Claim 11 is therefore rendered obvious.
Regarding claim 22, Ong teaches the structured food product of claim 1, wherein the first protein layer comprises one or more plant proteins, wherein the one or more plant proteins comprise rice protein, pea protein, potato protein, wheat protein, chickpea protein, soy protein, oats, quinoa, millet, lentils, or a combination thereof.
Ong teaches that suitable plant proteins may be obtained from peas, lentils, chickpea, potato, quinoa, oats, wheat, millet, or rice (p. 5, ¶ 5), as well as soy (p. 3, ¶ 9, re: Figure 7), and discloses an exemplary combination of proteins in pea protein and wheat gluten (p. 10, ¶ 2).
MPEP § 2144.07 states, “The selection of a known material based on its suitability for its intended use support[s] a prima facie obviousness determination”. Since Ong discloses that one or more of these claimed plant proteins, are suitable materials for use in a protein sheet (i.e., first protein layer) (p. 5, ¶ 4), it would have been prima facie obvious to select from these plant proteins to prepare the protein sheets of Ong.
Claim 22 is therefore rendered obvious.
Regarding claim 23, Ong teaches the structured food product of claim 1, wherein the structured food product further comprises one or more lipids – Ong teaches that the artificial meat product further comprises oil and/or fat (claim 21; p. 6, ¶ 2; p. 14, ¶¶ 8-9).
Claim 23 is therefore rendered obvious.
Regarding claim 24, Ong teaches the structured food product of claim 23, wherein the one or more lipids comprise sunflower oil, canola oil, coconut oil, palm oil, cocoa butter, vegetable oil, or a combination thereof – Ong teaches that a building block, such as a sheet, may comprise oil and/or fat (p. 14, ¶ 9) to improve the taste or texture of the artificial meat product (p. 14, ¶ 8). Suitable fats include cocoa butter (p. 14, ¶ 10), Suitable oils include canola oil, sunflower oil, palm oil, coconut oil, and others considered to be encompassed by the broad term “vegetable oil”, including corn oil and soy oil (pp. 14-15, bridging ¶).
MPEP § 2144.07 states, “The selection of a known material based on its suitability for its intended use support[s] a prima facie obviousness determination”. Since Ong discloses that one or more of these claimed fats and/or oils, are suitable materials for use in the artificial meat product (p. 14, ¶ 9), it would have been prima facie obvious to select from these plant proteins to prepare the artificial meat product of Ong to improve the taste or texture of the artificial meat product.
Claim 24 is therefore rendered obvious.
Regarding claim 25, Ong teaches the structured food product of claim 9, wherein the meat analogue is minced, diced, sliced, or ground – Ong teaches, “The complete meat cut can then be cut into desired shape and size.” (p. 19, last ¶). One of ordinary skill in the art would understand that desired shapes and sized are produced by micing, dicing, slicing, or grinding as claimed.
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to mince, dice, slice, or grind the artificial meat product of Ong to provide common desired shapes and sized of the artificial meat product to use in preparing various meals. One of ordinary skill in the art would have had a reasonable expectation of success in arriving at the claimed invention in doing so because the claimed forms are common in the food art.
Claim 25 is therefore rendered obvious.
Regarding claim 26, Ong teaches the structured food product of claim 25.
Ong does not discuss that the meat analogue is further incorporated into another food product.
However, the phrase, “wherein the meat analogue is further incorporated into another food product” is an intended use of the meat analogue. A statement with regard to intended use is not further limiting insofar as the structure of the product is concerned. In order to patentably distinguish the claimed invention from the prior art, a claimed intended use must result in a structural difference between the claimed invention and the prior art. See MPEP § 2111.02(II). In the present case there is no difference between the structure of the artificial meat product suggested in the prior art and the claimed meat analogue. This clause is therefore not limiting.
Regarding claim 27, Ong teaches the structured food product of claim 9, wherein the meat analogue comprises one or more animal-derived components or cultured animal cells.
Ong teaches, “The edible protein may include any protein suitable for dietary consumption, for example plant protein, microorganism protein, animal cell protein and/or meat protein.” (p. 5, ¶ 4). Ong teaches, “Animal cell protein for use in the methods described herein may be obtained from cultured non-human animal cells.” (p. 5, ¶ 7)
MPEP § 2144.07 states, “The selection of a known material based on its suitability for its intended use support[s] a prima facie obviousness determination”. Since Ong discloses the claimed animal-derived components (i.e., meat protein) or cultured animal cells being suitable materials for use in a protein sheet of the artificial meat product, it would have been prima facie obvious to select any of these proteins or combinations thereof to prepare the protein sheets of Ong.
Claim 27 is therefore rendered obvious.
Regarding claim 28, Ong teaches the structured food product of claim 1, wherein the structured food product comprises one or more flavorants – Ong teaches, “A building block may further comprise…flavourings…” (p. 6, ¶ 2), and “…flavourings are selected to correspond to the meat type of the artificial meat product.” (p. 6, ¶ 3).
Therefore, it would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to add flavorings to the artificial meat product to provide the artificial meat product with a flavor of real meat.
Claim 28 is therefore rendered obvious.
Regarding claim 29, Ong teaches the structured food product of claim 1, wherein the structured food product comprises nutrients, functional substances, or a combination thereof – Ong teaches:
In addition to edible protein, a building block may further comprise one or more of fat, colourings and flavourings or other food additives. Fat may be e.g. solid fat, liquid fat, animal fat or plant fat, and may be provided as an emulsion. Natural or artificial colourings and flavourings may be mixed in at small quantities. Food additives include e.g. preservatives, flavour enhancers, fat replacers, nutrients, emulsifiers, stabilizers, thickeners, binders, texturizers, pH control agents and acidulants, leavening agents, anti-caking agents, humectants, enzymes and gases. (p. 6, ¶ 2)
These are considered to be nutrients and “functional substances” as claimed.
MPEP § 2144.07 states, “The selection of a known material based on its suitability for its intended use support[s] a prima facie obviousness determination”. Since Ong discloses the claimed nutrients and/or functional substances as being suitable materials for use in the artificial meat product, it would have been prima facie obvious to select any of these ingredients to prepare the protein sheets of Ong to provide additional nutritional value and/or organoleptic properties to the artificial meat product to better replicate real meat.
Claim 29 is therefore rendered obvious.
Claims 2, 6, and 12 are rejected under 35 U.S.C. 103 as being unpatentable over Ong as applied to claim 1 above, in view of Reed et al. (WO 2021/178254 A1, cited on the IDS filed on 13 May 2024).
Regarding claim 2, Ong teaches the structured food product of claim 1.
As described regarding claim 1, Ong teaches that “[b]uilding blocks [i.e., sheets] as described herein may comprise or consist of edible protein. Any source of edible protein may be employed. The edible protein may include any protein suitable for dietary consumption, for example plant protein, microorganism protein, animal cell protein and/or meat protein.” (p. 5, ¶ 4).
Ong does not discuss that the first protein layer comprises protein from an oxyhydrogen microorganism.
However, Reed teaches structured food compositions, such as meat analogue compositions, which include protein products from microorganisms (Abstract). The microorganism may be a chemoautotrophic microorganism, such as Cupriavidus necator ([83] – [84]). Cupriavidus necator is an oxyhydrogen or knallgas microorganism ([150]). “The terms ‘oxyhydrogen’ and ‘oxyhydrogen microorganism’ can be used synonymously with ‘knallgas’ and ‘knallgas microorganism,’ respectively.” ([58]). Therefore, Reed teaches structured food compositions, including meat analogues, that comprise protein from an oxyhydrogen microorganism.
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to substitute the microorganism protein in the building blocks (i.e., protein sheets) of Ong with the oxyhydrogen microorganism protein of Reed by simple substitution of one known element for another to obtain predictable results. See MPEP § 2143(I)(B). Ong discloses layered artificial meat products wherein the layers may comprise edible protein from any source, including microorganism protein. Reed teaches that protein from oxyhydrogen microorganisms is used in meat analogue products. Therefore, substitution of the microorganism protein of Ong with the oxyhydrogen microorganism protein of Reed would yield the predictable result of obtaining a meat analogue/artificial meat product. One of ordinary skill in the art would have had a reasonable expectation of success in arriving at the claimed invention because the oxyhydrogen microorganism protein of Reed is used to prepare meat analogue products, and Ong teaches that microorganism protein can be used in forming the protein sheets that form the layers of the artificial meat product.
Claim 2 is therefore rendered obvious.
Regarding claim 6, Ong teaches the structured food product of claim 1.
As described regarding claim 1, Ong teaches that “[b]uilding blocks [i.e., sheets] as described herein may comprise or consist of edible protein. Any source of edible protein may be employed. The edible protein may include any protein suitable for dietary consumption, for example plant protein, microorganism protein, animal cell protein and/or meat protein.” (p. 5, ¶ 4), and “[m]icroorganism protein may be obtained from microorganisms using standard techniques” (p. 5, ¶ 6).
Ong does not discuss that the protein from the microorganism comprises single cell protein, cell lysate, protein isolate, protein concentrate, protein hydrolysate, free amino acid, peptide, oligopeptide, or a combination of any two or more thereof.
However, Reed teaches structured food compositions, such as meat analogue compositions, which include protein products from microorganisms (Abstract). Reed further teaches, “The microbially-derived protein product in the structured food product may include one or more of single cell protein, cell lysate, protein isolate, protein extract, protein hydrolysate, free amino acids, peptides, and oligopeptides.” ([84]). Therefore, Reed teaches that the claimed forms of microorganism proteins are suitable for use in structured food compositions, including meat analogues.
MPEP § 2144.07 states, “The selection of a known material based on its suitability for its intended use support[s] a prima facie obviousness determination”. Since Ong discloses that the claimed protein from a microorganism, is a suitable material for use in a protein sheet (i.e., first protein layer), and Reed teaches that the claimed forms of microorganism proteins are suitable for use in structured food compositions, including meat analogues, it would have been prima facie obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to use at least one of single cell protein, cell lysate, protein isolate, protein concentrate, protein hydrolysate, free amino acid, peptide, oligopeptide, or a combination of any two or more thereof, as claimed, in the meat replica product of Ong. One of ordinary skill in the art would have had a reasonable expectation of success in arriving at the claimed invention because Reed teaches that the claimed forms of microorganism protein can be used to prepare meat analogue products, and Ong teaches that microorganism protein can be used in forming the protein sheets that form the layers of the artificial meat product.
Claim 6 is therefore rendered obvious.
Regarding claim 12, Ong teaches the structured food product of claim 1.
As described regarding claim 1, Ong teaches that “[b]uilding blocks [i.e., sheets] as described herein may comprise or consist of edible protein. Any source of edible protein may be employed. The edible protein may include any protein suitable for dietary consumption, for example plant protein, microorganism protein, animal cell protein and/or meat protein.” (p. 5, ¶ 4).
Ong does not discuss that the microorganism comprises a Cupriavidus, Rhodococcus, Hydrogenovibrio, Rhodopseudomonas, Hydrogenobacter, Gordonia, Arthrobacter, Streptomycetes, Rhodobacter, Xanthobacter microorganism, or a consortium of two or more thereof.
However, Reed teaches structured food compositions, such as meat analogue compositions, which include protein products from microorganisms (Abstract). “In some embodiments, the microorganisms or protein product thereof includes one or more of the following genera: Cupriavidus, Rhodococcus, Hydrogenovibrio., Rhodopseudomonas, Hydrogenobacter, Gordonia, Arthrobacter, Streptomycetes, Rhodobacter, and/or Xanthobacter.” ([147]). Therefore, Reed teaches structured food compositions, including meat analogues, that comprise protein from the claimed microorganisms.
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to substitute the microorganism protein in the building blocks (i.e., protein sheets) of Ong with the protein of the claimed microorgansims as disclosed by of Reed by simple substitution of one known element for another to obtain predictable results. See MPEP § 2143(I)(B). Ong discloses layered artificial meat products wherein the layers may comprise edible protein from any source, including microorganism protein. Reed teaches that protein from the claimed microorganisms is used in meat analogue products. Therefore, substitution of the microorganism protein of Ong with protein from the claimed microorganisms as disclosed by Reed would yield the predictable result of obtaining a meat analogue/artificial meat product. One of ordinary skill in the art would have had a reasonable expectation of success in arriving at the claimed invention because protein from the claimed microorganisms as disclosed by Reed is used to prepare meat analogue products, and Ong teaches that microorganism protein can be used in forming the protein sheets that form the layers of the artificial meat product.
Claim 12 is therefore rendered obvious.
Claims 3-5 and 7 are rejected under 35 U.S.C. 103 as being unpatentable over Ong as applied to claim 1 above, in view of Reed et al. (WO 2021/178254 A1, cited on the IDS filed on 13 May 2024) as evidenced by Sharif et al. (Sharif, M., Zafar, M. H., Aqib, A. I., Saeed, M., Farag, M. R., & Alagawany, M. (2021). Single cell protein: Sources, mechanism of production, nutritional value and its uses in aquaculture nutrition. Aquaculture, 531, 735885. https://doi.org/10.1016/j.aquaculture.2020.735885).
Regarding claim 3, Ong teaches the structured food product of claim 1.
As described regarding claim 1, Ong teaches that “[b]uilding blocks [i.e., sheets] as described herein may comprise or consist of edible protein. Any source of edible protein may be employed. The edible protein may include any protein suitable for dietary consumption, for example plant protein, microorganism protein, animal cell protein and/or meat protein.” (p. 5, ¶ 4).
Ong does not discuss that the first protein layer comprises a microbial biomass, wherein the microbial biomass comprises oxyhydrogen microorganism cell mass and protein from an oxyhydrogen microorganism.
However, Reed teaches structured food compositions, such as meat analogue compositions, which include protein products from microorganisms (Abstract). The microorganism may be a chemoautotrophic microorganism, such as Cupriavidus necator ([83] – [84]). Cupriavidus necator is an oxyhydrogen or knallgas microorganism ([150]). “The terms ‘oxyhydrogen’ and ‘oxyhydrogen microorganism’ can be used synonymously with ‘knallgas’ and ‘knallgas microorganism,’ respectively.” ([58]). Reed further teaches, “The microbially-derived protein product in the structured food product may include one or more of single cell protein, cell lysate, protein isolate, protein extract, protein hydrolysate, free amino acids, peptides, and oligopeptides.” ([84]). As evidenced by Sharif, “Single cell protein (SCP) is a bulk of dried cells (biomass) which is produced by algae, yeast, bacteria and fungi. It can also be termed as bioprotein, microbial protein or biomass.” (p. 1, col. 2, ¶ 1). Therefore, Reed teaches structured food compositions, including meat analogues, that comprise protein from an oxyhydrogen microorganism, wherein the microbial biomass comprises oxyhydrogen microorganism cell mass and protein from an oxyhydrogen microorganism (i.e, C. necator SCP).
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to substitute the microorganism protein in the building blocks (i.e., protein sheets) of Ong with the oxyhydrogen microorganism single-cell protein of Reed by simple substitution of one known element for another to obtain predictable results. See MPEP § 2143(I)(B). Ong discloses layered artificial meat products wherein the layers may comprise edible protein from any source, including microorganism protein. Reed teaches that single-cell protein from oxyhydrogen microorganisms is used in meat analogue products. Therefore, substitution of the microorganism protein of Ong with the oxyhydrogen microorganism single-cell protein of Reed would yield the predictable result of obtaining a meat analogue/artificial meat product. One of ordinary skill in the art would have had a reasonable expectation of success in arriving at the claimed invention because the oxyhydrogen microorganism single-cell protein of Reed comprises microbial biomass comprising oxyhydrogen microorganism cell mass and protein from an oxyhydrogen microorganism and is used to prepare meat analogue products, and Ong teaches that microorganism protein can be used in forming the protein sheets that form the layers of the artificial meat product.
Claim 3 is therefore rendered obvious.
Regarding claim 4, Ong and Reed teach the structured food product of claim 3.
Ong does not discuss that the first protein layer comprises between about 0.5-25% by weight oxyhydrogen microorganism cell mass.
However, Reed teaches, “The protein product, e.g., any of the protein products described herein, may be included in the structured food composition in an amount any of at least about 5% (w/w), 10% (w/w), 15% (w/w), 20% (w/w), 25% (w/w)…” ([86]).
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to further modify the protein sheets of Ong as modified by Reed to include the microbial biomass in amounts of at least about 5% (w/w), 10% (w/w), 15% (w/w), 20% (w/w), 25% (w/w) as disclosed by Reed for preparing a meat analogue product. One of ordinary skill in the art would have been motivated to use these amounts because Reed teaches that they are suitable for making meat analogue products. The claimed range of between about 0.5-25% by weight overlaps the disclosed ranges of at least about 5% (w/w), 10% (w/w), 15% (w/w), 20% (w/w), 25% (w/w). In a case where the claimed ranges overlap or lie inside ranges disclosed by the prior art, a prima facie case of obviousness exists, MPEP § 2144.05(I).
Claim 4 is therefore rendered obvious.
Regarding claim 5, Ong teaches the structured food product of claim 1.
As described regarding claim 1, Ong teaches that “[b]uilding blocks [i.e., sheets] as described herein may comprise or consist of edible protein. Any source of edible protein may be employed. The edible protein may include any protein suitable for dietary consumption, for example plant protein, microorganism protein, animal cell protein and/or meat protein.” (p. 5, ¶ 4). Ong teaches, “In particular, plant protein may be obtained/derived from legumes (e.g. peas…” (p. 5, ¶ 5). Therefore, Ong teaches combinations of plant protein, particularly pea protein, and microorganism protein as suitable for preparing the protein sheets.
Ong does not discuss that the first protein layer comprises a microbial biomass, wherein the microbial biomass comprises oxyhydrogen microorganism cell mass and protein from an oxyhydrogen microorganism.
However, Reed teaches structured food compositions, such as meat analogue compositions, which include protein products from microorganisms (Abstract). The microorganism may be a chemoautotrophic microorganism, such as Cupriavidus necator ([83] – [84]). Cupriavidus necator is an oxyhydrogen or knallgas microorganism ([150]). “The terms ‘oxyhydrogen’ and ‘oxyhydrogen microorganism’ can be used synonymously with ‘knallgas’ and ‘knallgas microorganism,’ respectively.” ([58]). Reed further teaches, “The microbially-derived protein product in the structured food product may include one or more of single cell protein, cell lysate, protein isolate, protein extract, protein hydrolysate, free amino acids, peptides, and oligopeptides.” ([84]). As evidenced by Sharif, “Single cell protein (SCP) is a bulk of dried cells (biomass) which is produced by algae, yeast, bacteria and fungi. It can also be termed as bioprotein, microbial protein or biomass.” (p. 1, col. 2, ¶ 1). Therefore, Reed teaches structured food compositions, including meat analogues, that comprise protein from an oxyhydrogen microorganism, wherein the microbial biomass comprises oxyhydrogen microorganism cell mass and protein from an oxyhydrogen microorganism (i.e, C. necator SCP). Reed also teaches that the meat analogue may include one or more plant protein sources, such as pea protein, in combination with a protein product produced by microorganisms ([107]).
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to substitute the microorganism protein in the building blocks (i.e., protein sheets) of Ong comprising pea protein and microorganism protein with the oxyhydrogen microorganism single-cell protein of Reed by simple substitution of one known element for another to obtain predictable results. See MPEP § 2143(I)(B). Ong discloses layered artificial meat products wherein the layers may comprise edible protein from any source, including combinations of plant protein, particularly pea protein, and microorganism protein. Reed teaches that single-cell protein from oxyhydrogen microorganisms is used in meat analogue products. Therefore, substitution of the microorganism protein of Ong with the oxyhydrogen microorganism single-cell protein of Reed would yield the predictable result of obtaining a meat analogue/artificial meat product. One of ordinary skill in the art would have had a reasonable expectation of success in arriving at the claimed invention because the oxyhydrogen microorganism single-cell protein of Reed comprises microbial biomass comprising oxyhydrogen microorganism cell mass and protein from an oxyhydrogen microorganism and is used to prepare meat analogue products that may also comprise pea protein, and Ong teaches that microorganism protein and pea protein can be used in forming the protein sheets that form the layers of the artificial meat product.
Claim 5 is therefore rendered obvious.
Regarding claim 7, Ong teaches the structured food product of claim 1.
As described regarding claim 1, Ong teaches that “[b]uilding blocks [i.e., sheets] as described herein may comprise or consist of edible protein. Any source of edible protein may be employed. The edible protein may include any protein suitable for dietary consumption, for example plant protein, microorganism protein, animal cell protein and/or meat protein.” (p. 5, ¶ 4).
Ong does not discuss that the first protein layer comprises microbial biomass, wherein the microbial biomass is between about 0.5-25% by weight oxyhydrogen microorganism cell mass and between about 60%-99.5% by weight protein from the oxyhydrogen microorganism.
However, Reed teaches structured food compositions, such as meat analogue compositions, which include protein products from microorganisms (Abstract). The microorganism may be a chemoautotrophic microorganism, such as Cupriavidus necator ([83] – [84]). Cupriavidus necator is an oxyhydrogen or knallgas microorganism ([150]). “The terms ‘oxyhydrogen’ and ‘oxyhydrogen microorganism’ can be used synonymously with ‘knallgas’ and ‘knallgas microorganism,’ respectively.” ([58]). Reed further teaches, “The microbially-derived protein product in the structured food product may include one or more of single cell protein, cell lysate, protein isolate, protein extract, protein hydrolysate, free amino acids, peptides, and oligopeptides.” ([84]). As evidenced by Sharif, “Single cell protein (SCP) is a bulk of dried cells (biomass) which is produced by algae, yeast, bacteria and fungi. It can also be termed as bioprotein, microbial protein or biomass.” (p. 1, col. 2, ¶ 1). Therefore, Reed teaches structured food compositions, including meat analogues, that comprise protein from an oxyhydrogen microorganism, wherein the microbial biomass comprises oxyhydrogen microorganism cell mass and protein from an oxyhydrogen microorganism (i.e, C. necator SCP). Reed further teaches that “…a microorganism as described herein can accumulate protein to about 60% or more of the total cell mass by weight… In some non-limiting embodiments, the microorganism exhibiting these traits is Cupriavidus necator…” ([144]). Therefore, Reed teaches that the C. necator SCP can accumulate about 60% or more of the cell mass in protein.
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to substitute the microorganism protein in the building blocks (i.e., protein sheets) of Ong with the oxyhydrogen microorganism single-cell protein, comprising about 60% or more of the cell mass in protein, of Reed by simple substitution of one known element for another to obtain predictable results. See MPEP § 2143(I)(B). Ong discloses layered artificial meat products wherein the layers may comprise edible protein from any source, including microorganism protein. Reed teaches that single-cell protein, comprising about 60% or more of the cell mass in protein, from oxyhydrogen microorganisms is used in meat analogue products. Therefore, substitution of the microorganism protein of Ong with the oxyhydrogen microorganism single-cell protein of Reed would yield the predictable result of obtaining a meat analogue/artificial meat product. One of ordinary skill in the art would have had a reasonable expectation of success in arriving at the claimed invention because the oxyhydrogen microorganism single-cell protein of Reed comprises microbial biomass comprising oxyhydrogen microorganism cell mass and about 60% or more of the cell mass in protein from an oxyhydrogen microorganism and is used to prepare meat analogue products, and Ong teaches that microorganism protein can be used in forming the protein sheets that form the layers of the artificial meat product. The claimed range of about 60-99.5% by weight lies inside the disclosed range of about 60% or more. In a case where the claimed ranges overlap or lie inside ranges disclosed by the prior art, a prima facie case of obviousness exists, MPEP § 2144.05(I).
Regarding the amount of oxyhydrogen microorganism cell mass, the non-protein portion of the oxyhydrogen microorganism biomass is considered to be the cell mass as claimed. Where Reed teaches that the C. necator SCP/biomass can accumulate about 60% or more of the cell mass in protein, the remaining cell mass amounts to up to 40% by weight. The claimed range of between about 0.5-25% by weight lies inside the disclosed range of up to 40% by weight. In a case where the claimed ranges overlap or lie inside ranges disclosed by the prior art, a prima facie case of obviousness exists, MPEP § 2144.05(I).
Claim 7 is therefore rendered obvious.
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Ong as applied to claim 1 above, in view of Reed et al. (WO 2021/178254 A1, cited on the IDS filed on 13 May 2024) and Orthoefer (US 4,125,630 A).
Regarding claim 8, Ong teaches the structured food product of claim 1.
Ong further teaches, “The building blocks [i.e., protein sheets] are bound together in the artificial meat product with one or more edible binders…Suitable binders include…proteins…” (p. 6, ¶ 5).
Ong does not discuss that the adhesive layer comprises protein from an oxyhydrogen microorganism.
However, Reed teaches structured food compositions, such as meat analogue compositions, which include protein products from microorganisms (Abstract). The microorganism may be a chemoautotrophic microorganism, such as Cupriavidus necator ([83] – [84]). Cupriavidus necator is an oxyhydrogen or knallgas microorganism ([150]). “The terms ‘oxyhydrogen’ and ‘oxyhydrogen microorganism’ can be used synonymously with ‘knallgas’ and ‘knallgas microorganism,’ respectively.” ([58]). Therefore, Reed teaches structured food compositions, including meat analogues, that comprise protein from an oxyhydrogen microorganism.
Orthoefer teaches preparing meat analogues by combining hydrated vegetable protein fibers with conventional edible hydrophilic film formers or binders (col. 9, lines 35-37). Orthoefer teaches that microbial protein sources may be suitably used as meat-analog binders (col. 9, lines 49-55).
MPEP § 2144.07 states, “The selection of a known material based on its suitability for its intended use support[s] a prima facie obviousness determination”. Since Ong discloses that the binder (i.e., adhesive) of the artificial meat product may comprise protein, Orthoefer teaches that microbial proteins are suitable for use as meat analogue binders, and Reed teaches that protein from oxyhydrogen microorganisms is suitable for use in meat analogue products, it would have been prima facie obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to use protein from an oxyhydrogen microorganism as a protein in the binder of the meat replica product of Ong. One of ordinary skill in the art would have had a reasonable expectation of success in arriving at the claimed invention because incorporating the oxyhydrogen microorganism protein of Reed into the binder of Ong meets the requirements of the present claim.
Claim 8 is therefore rendered obvious.
Further, attention is invited to In re Levin, 84 USPQ 232 and the cases cited therein, which are considered in point in fact situation of the instant case. At page 234, the Court stated as follows:
This court has taken the position that new recipes or formulas for cooking food which involve the addition or elimination of common ingredients, or for treating them in ways which differ from the former practice, do not amount to invention, merely because it is not disclosed that, in the constantly developing art of preparing food, no one else ever did the particular thing upon which the applicant asserts his right to a patent. In all such cases, there is nothing patentable unless the applicant by a proper showing further establishes a coaction or cooperative relationship between the selected ingredients which produces a new, unexpected and useful function. In re Benjamin D. White, 17 C.C.P.A. (Patents) 956, 39 F.2d 974, 5 USPQ 267; In re Mason et al., 33 C.C.P.A. (Patents) 1144, 156 F.2d 189, 70 USPQ 221.
In the present case, no coaction or cooperative relationship has been demonstrated by simply incorporating an oxyhydrogen microorganism protein into the adhesive layer. As such claim 8 is not patentable.
Conclusion
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/JAMES P. SHELLHAMMER/Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793
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