DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
This Office Action is in response to the paper filed 4 March 2026. Claim 46 remains withdrawn. Claims 1, 2, 4-9, 11-16, and 31-45 are currently pending and under examination.
This application is a continuation of U.S. Patent Application No. 17/882488, filed August 5, 2022, which is a divisional of U.S. Patent Application 16/803667, filed February 27, 2020, now U.S. Patent 11,432,575, which claims the benefit of priority to U.S. Provisional Patent Application 62/811421, filed February 27, 2019.
Maintained Rejections:
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1, 2, 4-6, 8, 9, 11-16, 32-34, and 39-45 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Compost and Cava (Blended Burger Recipe: Beef and Oyster Mushroom Burger with Caramelized Onions and Goat Cheese, May 24, 2018, Available online at: www.compostandcava.com/home/blended-burger - Previously Presented).
With regard to claim 1, Compost and Cava teach a beef and oyster mushroom burger, which is an augmented foodstuff, the burger comprising ¾ lb. of ground beef, which is a non-mycelial biomass food material; and ¼ lb of oyster mushrooms (Pleurotus ostreatus) (p. 6, Ingredients). Applicant indicates that the mycelial biomass comprises at least one filamentous fungus, including Pleurotus species, including specifically Pleurotus ostreatus (see claim 42; Specification, para. 10). As such, Pleurotus ostreatus as taught by Compost and Cava is interpreted to be encompassed by the term “mycelial biomass.” As the burger of Compost and Cava comprises the components as claimed, and as these components cannot be separated from their properties, the oyster mushrooms in the burger of Compost and Cava necessarily augment nutritional content of the beef.
With regard to claims 2, 6, and 8, Compost and Cava teach that the oyster mushrooms are roughly chopped (p. 7, Directions), which provides particles of a filamentous fungus. The ¼ lb of oyster mushrooms, which are particles of a filamentous fugus, are combined with 1 tbsp of olive oil (p. 6, Ingredients, p. 7 directions), which provides a liquid dispersion of particles of a filamentous fungus. As Applicant has not provided a specific definition for the term “about,” ¼ lb of oyster mushrooms in 1 tbsp of liquid is deemed to be fully encompassed within a ratio of filamentous fungal particles to liquid of “about” 1:10 to “about” 10:1, and “about” 1:5 to “about” 5:1.
With regard to claims 4 and 5, Compost and Cava teach a blended burger comprising beef and oyster mushrooms (p. 1, p. 7 Directions, 4.-5.). The burger comprising ¾ lb of ground beef and ¼ lb of oyster mushrooms (p. 6, Ingredients), which is fully encompassed with a ratio of mycelial biomass to non-mycelial food material of 10:90 to 90:10 and 10:90 to 50:50.
With regard to claims 9, 32, and 33, Compost and Cava teach that the mycelial biomass is heated (p. 7, Directions, 3.), wherein heat is a treatment that inactivates the viability of the mycelial biomass/filamentous fungal particles (see instant claim 33), which is eliminating cell viability.
With regard to claim 11, Compost and Cava teach that the augmented foodstuff further comprises garlic, olive oil, salt and pepper (p. 6, Ingredients), which are a flavor/flavor enhancer, fat, preservative, and spice.
With regard to claims 12, 14, and 15, Compost and Cava teach that the mycelial biomass is from oyster mushrooms (p. 6, Ingredients), which is the filamentous fungus Pleurotus ostreatus, a Pleurotus species. Applicant indicates that filamentous fungal species usable for the mycelial biomass in the augmented foodstuff as claimed include Pleurotus species (see claim 42). As the mycelial biomass of the Pleurotus species cannot be separated from its properties, the mycelial biomass of the Pleurotus species as taught by Compost and Cava necessarily provides for at least about 25 wt% of protein in the augmented foodstuff, at least about 23% fiber content, and has a lipid content of about 6 wt% to about 11 wt%.
With regard to claim 13, Compost and Cava teach that the augmented foodstuff includes beef (p. 6, Ingredients), wherein beef includes all essential amino acids (see Art of Record: Arnarson, p. 2, last line to p. 3, line 1). As such, the augmented foodstuff of Compost and Cava comprises all essential amino acids.
With regard to claim 16, Compost and Cava teach that the non-mycelial food material further comprises goat cheese (p. 6, Ingredients), which contains goat milk.
With regard to claims 34, 39 and 40, Compost and Cava teach a blended burger comprising beef and oyster mushrooms (p. 1, p. 7 Directions, 4.-5.). The burger comprising ¾ lb of ground beef and ¼ lb of oyster mushrooms (p. 6, Ingredients), which is 75% beef and fully encompassed within 60% to 90% beef; and 25% mycelial biomass and fully encompassed within about 10 wt% to about 40 wt% of the burger.
With regard to claim 41, as the burger of Compost and Cava comprises the components as claimed, and as these components cannot be separated from their properties, the burger necessarily has an average max hardness (g) of from 2094 to 5011; an average area (g/mm) of from 8118 to 14048; and/or an average mean (g) of from 1089 to 1929.
With regard to claim 42, Compost and Cava teach that the mycelial biomass comprises oyster mushrooms (p. 6, Ingredients), wherein oyster mushrooms are Pleurotus ostreatus, and therefore a Pleurotus species.
With regard to claim 43, Compost and Cava teach that the mycelial biomass comprises oyster mushrooms (p. 6, Ingredients), wherein oyster mushrooms are a Pleurotus species, and Pleurotus species have a moisture content of about 90% and 10% dry matter content (see Art of Record: Akyuz et al., p. 220, Left Col., Results and Discussion, second part of Para. 1). Thus, the mycelial biomass has a dry matter content fully encompassed within 10% to 30%.
With regard to claims 44 and 45, Compost and Cava teach that the mycelial biomass comprises aerial hyphae of oyster mushrooms (see p. 4-6, pictures).
Claims 1, 2, 4-9, 11, 12, 14-16, 32-34, 42, 44, and 45 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Eat the Vegan Rainbow (Broiled Vegan Koftas, March 10, 2018, Available online at: eattheveganrainbow.com/ 2018/03/10/broiled-vegan-koftas/ - Previously Presented).
With regard to claim 1, Eat the Vegan Rainbow teaches broiled vegan koftas, which are an augmented foodstuff, the koftas comprising 10 oz textured vegetable protein (TVP), which is a non-mycelial biomass food material; and 10 oz white button mushrooms (Agaricus bisporus) (p. 4-5). Applicant indicates that the mycelial biomass comprises at least one filamentous fungus, including Agaricus bisporus (see claim 42; Specification, para. 10). As such, Agaricus bisporus as taught by Eat the Vegan Rainbow is interpreted to be encompassed by the term “mycelial biomass.” As the broiled vegan koftas of Eat the Vegan Rainbow comprise the components as claimed, and as these components cannot be separated from their properties, the white button mushrooms in the koftas of Eat the Vegan Rainbow necessarily augment nutritional content of the TVP.
With regard to claims 2, 6, and 8, Eat the Vegan Rainbow teach that the white button mushrooms are pulsed in a food processor (p. 5, What you’ll do: 1.), which provides particles of a filamentous fungus. The 10 oz white button mushrooms, which are particles of a filamentous fugus, are combined with 3 tbsp of olive oil (p. 4, What you’ll need; p. 5 What you’ll do: 1.), which provides a liquid dispersion of particles of a filamentous fungus. As Applicant has not provided a specific definition for the term “about,” 10 oz white button mushrooms in 3 tbsp of liquid is deemed to be fully encompassed within a ratio of filamentous fungal particles to liquid of “about” 1:10 to “about” 10:1, and “about” 1:5 to “about” 5:1.
With regard to claims 4 and 5, Eat the Vegan Rainbow teaches broiled vegan koftas, which are an augmented foodstuff, the koftas comprising 10 oz TVP, which is a non-mycelial biomass food material; and 10 oz white button mushrooms (Agaricus bisporus), which is a product comprising mycelial biomass (p. 4-5), which is fully encompassed with a ratio of mycelial biomass to non-mycelial food material of 10:90 to 90:10 and 10:90 to 50:50.
With regard to claim 7, Eat the Vegan Rainbow teaches that the koftas are served with yogurt (p. 5, What you’ll do: 6.). Therefore, the non-mycelial biomass food material comprises yogurt.
With regard to claims 9, 32, and 33, Eat the Vegan Rainbow teaches that the mycelial biomass is heated (p. 5, What you’ll do: 5.), wherein heat is a treatment that inactivates the viability of the mycelial biomass/filamentous fungal particles (see instant claim 33), which is eliminating cell viability.
With regard to claim 11, Eat the Vegan Rainbow teaches that the augmented foodstuff further comprises garlic, olive oil, coriander, cumin, paprika, and red pepper flakes (p. 4, What you’ll need), which are a flavor/flavor enhancer, fat, and spices.
With regard to claims 12, 14, and 15, Eat the Vegan Rainbow teaches that the mycelial biomass is from white button mushrooms (p. p. 4, What you’ll need), which is the filamentous fungus Agaricus bisporus. Applicant indicates that filamentous fungal species usable for the mycelial biomass in the augmented foodstuff as claimed include Agaricus bisporus (see claim 42). As the mycelial biomass of Agaricus bisporus cannot be separated from its properties, the mycelial biomass of Agaricus bisporus as taught by Eat the Vegan Rainbow necessarily provides for at least about 25 wt% of protein in the augmented foodstuff, at least about 23% fiber content, and has a lipid content of about 6 wt% to about 11 wt%.
With regard to claim 16, Compost and Cava teach that the non-mycelial food material comprises TVP (p. 4, What you’ll need).
With regard to claim 34 Eat the Vegan Rainbow teaches broiled vegan koftas, comprising: 10 oz white button mushrooms, 10 oz TVP, 1 cup bread crumbs, 4 cloves garlic, 3 tbsp olive oil, 2 tsp coriander powder, 2 tsp ground cumin, 2 tsp smoked paprika, 1 tsp crushed red pepper flakes, and cooking spray (p. 4-5, What you’ll need). As Applicant has not provided a specific definition for the term “about,” the mycelial biomass makes up “about” 10 wt% to “about” 40 wt% of the foodstuff.
With regard to claim 42, Eat the Vegan Rainbow teaches that the mycelial biomass is from white button mushrooms (p. p. 4, What you’ll need), which is the filamentous fungus Agaricus bisporus.
With regard to claims 44 and 45, Eat the Vegan Rainbow teaches that the mycelial biomass comprises white button mushrooms (p. 4, What you’ll need), wherein the edible portion of white button mushrooms comprises aerial hyphae.
Claim Rejections - 35 USC § 103
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.
Claims 1, 31, and 35-38 are rejected under 35 U.S.C. 103 as being unpatentable over Compost and Cava (Blended Burger Recipe: Beef and Oyster Mushroom Burger with Caramelized Onions and Goat Cheese, May 24, 2018, Available online at: www. compostandcava.com/home/blended-burger - Previously Presented).
The teachings of Compost and Cava as applied to claim 1 have been set forth above.
With regard to claims 31 and 35-38, Compost and Cava teach that the oyster mushrooms are roughly chopped and then are also finely chopped or pureed in a food processor (p. 6, Ingredients, p. 7, Directions, 4.; see also p. 6, picture). While the particle size of mycelial biomass in the burger is not specifically taught, it would have been routine for an ordinary artisan to adjust the particle size of the oyster mushrooms for mixing with the beef in the burger, to adjust the taste and texture of the finished burger as desired.
Additionally, please also note that "the discovery of an optimum value of a variable in a known process is usually obvious." Pfizer v. Apotex, 480 F.3d at 1368. The rationale for determining the optimal parameters for prior art result effective variables "flows from the 'normal desire of scientists or artisans to improve upon what is already generally known.'" Id. (quoting In re Peterson, 315 F.3d 1325, 1330 (Fed. Cir. 2003)). Accordingly, it would have been obvious to optimize the particle size of the oyster mushrooms, including having a length of about 0.05 mm to about 500 mm, a width is 0.03 mm to about 7 mm, and a height is about 0.03 mm to about 1.0 mm; a particle size of 0.03 mm to about 0.4 mm; particles with 90% of the edible filamentous fungal particles having lengths less than 1.5 mm and a majority of the edible filamentous fungal particles having lengths of less than 1 mm, widths of less than 1 mm and depths of less than 0.75 mm; filamentous fungal particles with 90% of the edible filamentous fungal particles having lengths of 4 mm to 10 mm, widths of 1 mm to 3 mm, and depths of less than 0.75 mm; or in the form of a flour, to result in particles of an appropriate size for mixing with the beef in the burger, to adjust taste and texture of the finished burger as desired.
Claims 1, 31, and 35-38 are rejected under 35 U.S.C. 103 as being unpatentable over Eat the Vegan Rainbow (Broiled Vegan Koftas, March 10, 2018, Available online at: eattheveganrainbow.com/ 2018/03/10/broiled-vegan-koftas/ - Previously Presented).
The teachings of Eat the Vegan Rainbow as applied to claim 1 have been set forth above.
With regard to claims 31 and 35-38, Eat the Vegan Rainbow teaches that the white button mushrooms are pulsed in a food processor (p. 6, Ingredients, p. 7, Directions, 4.; see also p. 6, picture). While the particle size of mycelial biomass in the koftas is not specifically taught, it would have been routine for an ordinary artisan to adjust the particle size of the white button mushrooms for mixing with the TVP and remaining ingredient to adjust the taste and texture of the finished koftas as desired.
Additionally, please also note that "the discovery of an optimum value of a variable in a known process is usually obvious." Pfizer v. Apotex, 480 F.3d at 1368. The rationale for determining the optimal parameters for prior art result effective variables "flows from the 'normal desire of scientists or artisans to improve upon what is already generally known.'" Id. (quoting In re Peterson, 315 F.3d 1325, 1330 (Fed. Cir. 2003)). Accordingly, it would have been obvious to optimize the particle size of the white button mushrooms, including having a length of about 0.05 mm to about 500 mm, a width is 0.03 mm to about 7 mm, and a height is about 0.03 mm to about 1.0 mm; a particle size of 0.03 mm to about 0.4 mm; particles with 90% of the edible filamentous fungal particles having lengths less than 1.5 mm and a majority of the edible filamentous fungal particles having lengths of less than 1 mm, widths of less than 1 mm and depths of less than 0.75 mm; filamentous fungal particles with 90% of the edible filamentous fungal particles having lengths of 4 mm to 10 mm, widths of 1 mm to 3 mm, and depths of less than 0.75 mm; or in the form of a flour, to result in particles of a size appropriate for mixing with the TVP and other ingredients, to adjust taste and texture of the finished koftas as desired.
Response to Arguments
Applicant urges that Compost and Cava and Eat the Vegan Rainbow do not anticipate the claimed invention, as the mushrooms in cited art are not “mycelial biomass” as claimed. Applicant indicates that the term “mycelium” is well known in the art and has a clear definition that does not include “mushroom,” which only refers to the fruiting body, as evidenced by the cited references. Additionally, while Applicant maintains that the specification adequately defines “mycelium,” it is further urged that a definition is not needed, as the meaning of “mycelium” as contrasted with “mushroom” is well known in the art and available (referencing MPEP § 2164.05). The obviousness rejections over Compost and Cava and Eat the Vegan Rainbow are traversed for the same reasons.
Applicant’s arguments have been fully considered, but have not been found persuasive.
The meaning of every term used in a claim should be apparent from the prior art or from the specification at the time the application is filed (see MPEP § 2173.05(a)). The terms “aerial hyphae” and “vegetative mycelia” are considered by Applicant to fall within the broader term of mycelial biomass (see claims 44 and 46). It is noted that Applicant previously elected aerial hyphae (claim 44), and not vegetative mycelia (claim 46).
With regard to the term “aerial hyphae,” as understood in the art, Fig. 1 of Diaz-Godinez et al. (Characterization of the Solid-State and Liquid Fermentation for the Production of Laccases of Pleurotus ostreatus, Fermentation Processes, Chapter 4, 2017, Available at: www.intechopen. com/books/fermentation-processes), is reproduced here.
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As can be seen in the figure, “aerial hyphae” is shown to be part of the fruit body or reproductive phase (i.e. the “mushroom”), as opposed to the mycelium or vegetative phase. Given this teaching, an ordinary artisan would understand that the term mycelial biomass, which includes aerial hyphae, necessarily includes the “mushroom” portion of the fungal mass.
The meaning of mycelial biomass, as including the elected species of aerial hyphae, is addressed above by the cited art. Additionally, Applicant clearly indicates that specific species of fungus are included in the term “mycelial biomass.” For example, claim 42 recites:
42. (Previously Presented) The augmented foodstuff of claim 1, wherein the mycelial biomass comprises at least one filamentous fungus selected from the group consisting of Fusarium strain MK7 (ATCC PTA-10698), Fusarium venenatum, Fusarium fujikuroi, Fusarium avenaceum, Rhizopus species, Aspergillus species, Agaricus bisporus, Boletus edulis, Cantor ellus cibarius, Calvatia gigantea, Cyclocybe aegerita, Ganoderma lucidum, Grifola frondosa, Morchella species, Hypsizygus tessellatus, Hypsizygus ulmarius, Laetiporus species, Lentinula edodes, Pleurotus species, Calvatia gigantean, Hypsizygus ulmarius, Pholiota microspora, Sparassis crispa, and Tuber species.
The recitation that “the mycelial biomass comprises at least one filamentous fungus” selected from the group, as opposed to language such as the mycelial biomass is derived from the filamentous fungus, indicates that the named species are intended to be considered “mycelial biomass” as claimed. As such, Pleurotus ostreatus as taught by Compost and Cava and Agaricus bisporus as taught by Eat the Vegan Rainbow, are interpreted to be encompassed by the term “mycelial biomass.”
With regard to the obviousness rejections over Compost and Cava and Eat the Vegan Rainbow, the noted deficiencies have been addressed above.
To overcome the current rejections, it is suggested that Applicant more specifically define the term in the claims to indicate that mycelial biomass does not include the fruiting body of the mushroom.
Conclusion
No claims are allowable.
Previously Presented Art of Record:
Akyuz et al., Nutritive value of Pleurotus ostreatus (Jacq.) P. Kumm. grown on some cellulosic residues, Vol. 22, Iss. 2, (2021), pp. 218-221 (Pleurotus species have a moisture content of about 90% and 10% dry matter content).
Arnarson, Healthline, Beef 101: Nutrition Facts and Health Effects, July 24, 2024, Available online at: www.healthline.com/nutrition/beef (beef contains all the essential amino acids).
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/JENNIFER M.H. TICHY/Primary Examiner, Art Unit 1653
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