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 .
Claims Status
Claims 1-11 are pending in the current application.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1-2, 4-5 and 7-11 are rejected under 35 U.S.C. 103 as being unpatentable over Reference #1 (GB 1560178 A) in view of Fung ( US 5308639)
With regard to Claim 1, Reference #1 teaches a fat simulating composition (title) comprising an aqueous phase and an oil phase dispersed in the aqueous phase (page 3 lines 3-6). Reference #1 teaches the oil phase is preferably liquid vegetable oils with an exemplary example of a suitable vegetable oils being coconut oil wherein the melting point is no higher than about 40°C (page 3 lines 50-54).
With regard to the D-line refractive index of the oil phase, reference #1 teaches using coconut oil (page 3 lines 50-54). Per applicants specification paragraph 69, coconut oil is particularly preferable from the viewpoint of bringing a color change closer to that of fat of livestock meat during heating. Therefore, it would have been obvious to one with ordinary skill in the art that the oil phase taught by Reference #1 would have the desired D-line refractive index. See MPEP 2112.01(II) "Products of identical chemical composition can not have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present.
With regard to the D-line refractive index of the aqueous phase, Reference #1 teaches the aqueous phase can contain preferred embodiments of non-animal-derived edible resin, a protein, and carbohydrate. Reference #1 teaches the aqueous phase can contain carrageenan and a cellulose derivative (page 10 table 1) which is a non-animal derived edible resin taught in applicants specification paragraph ([0055]). In addition the aqueous phase can contain starch (page 10 table 1) which is a carbohydrate taught in applicants specification paragraph ([0055]). Lastly, Reference #1 teaches the aqueous phase can contain soy protein (page 3 lines 1-3) which is a protein taught in applicants specification paragraph ([0055]). Therefore, it would have been obvious to one with ordinary skill in the art that the aqueous phase taught by Reference #1 would have the desired D-line refractive index. See MPEP 2112.01(II) "Products of identical chemical composition can not have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present.
Therefore, because the oil phase and aqueous phase taught by Reference #1 would inherently have the desired D-line refractive index, then it would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention that the composition taught by Reference #1 would have the claimed absolute value of a difference between a d-line refractive index of the oil and aqueous phases.
With regard to the aqueous phase, Reference #1 teaches the aqueous phase being a gel containing an edible ionically cross linkable polymer. Reference #1 read such that the matrix phase of the present invention necessarily includes a water-soluble, film-forming component in addition to the heat coagulable component. The preferred water-soluble, film-forming materials are those which form gels which are heat reversible and melt at elevated temperatures (page 5 lines 39-42). Reference #1 teaches carrageenan is a preferred material (page 5 lines 53-56).
However, Reference #1 is silent to the carrageenan (i.e., the ionically crosslinkable polymer) being crosslinked with a cation.
Fung teaches a low calorie fat substitute comprising a non-flowable aqueous phase and an oil phase (abstract). Fung teaches the aqueous gel-forming composition formed by combining, in an aqueous medium, a gel-forming amount of an appropriate polysaccharide with a salt of a metal cation capable of cross-linking said polysaccharide (col 5 lines 58-62) Fung teaches the gel-forming polysaccharide can be carrageenan (Col 2 lines 47-63, Col 5 lines 63-67). Wherein the carrageenan is preferably crosslinked with calcium or potassium salts (i.e, cations, Col 6 lines 1-3).
Therefore, Fung imparts reasoning for obviousness because the teaching shows that the utilization of an ionically crosslinkable polymer (carrageenan) with a cation (calcium or potassium) was known for use in fat simulating compositions and to have been successfully achieved and published at the time of filing, which means it was within the general skill of one with ordinary skill in the art to crosslink carrageenan in combination with calcium or potassium on the vasus of its suitability for a similar intended use. See MPEP 2144.07 that discussed that when the prior art recognizes something is suitable for a similar intended use/purpose, such a thing is obvious.
With regard to Claim 2, Reference #1 teaches the oil phase contain at least one of an oil derived from vegetable or a fat derived from vegetable (page 3 lines 45-64).
With regard to Claim 4, Reference #1 teaches the aqueous phase contains at least one selected from a non-animal-derived edible resin, a protein, or a carbohydrate (page 3 lines 9-13).
With regard to Claim 5, Reference #1 teaches the aqueous phase contains at least one edible additive wherein the edible additive can be sucrose (page 7 lines 2-19).
With regard to Claim 7, Reference #1 teaches the oil phase is a granular material having an average diameter ranging from 10 microns to 120 microns, uniformly dispersed throughout a matrix phase (page 7 lines 24-27).
With regard to Claim 8, With regard to the D-line refractive index of the oil phase, reference #1 teaches using coconut oil (page 3 lines 50-54). Per applicants specification paragraph 69, coconut oil is particularly preferable from the viewpoint of bringing a color change closer to that of fat of livestock meat during heating. Therefore, it would have been obvious to one with ordinary skill in the art that the oil phase taught by Reference #1 would have the desired D-line refractive index. See MPEP 2112.01(II) "Products of identical chemical composition can not have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present.
With regard to the D-line refractive index of the aqueous phase, Reference #1 teaches the aqueous phase can contain preferred embodiments of non-animal-derived edible resin, a protein, and carbohydrate. Reference #1 teaches the aqueous phase can contain carrageenan and a cellulose derivative (page 10 table 1) which is a non-animal derived edible resin taught in applicants specification paragraph ([0055]). In addition the aqueous phase can contain starch (page 10 table 1) which is a carbohydrate taught in applicants specification paragraph ([0055]). Lastly, Reference #1 teaches the aqueous phase can contain soy protein (page 3 lines 1-3) which is a protein taught in applicants specification paragraph ([0055]). Therefore, it would have been obvious to one with ordinary skill in the art that the aqueous phase taught by Reference #1 would have the desired D-line refractive index. See MPEP 2112.01(II) "Products of identical chemical composition can not have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present.
Therefore, because the oil phase and aqueous phase taught by Reference #1 would inherently have the desired D-line refractive index, then it would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention that the composition taught by Reference #1 would have the claimed relationship of the D-line refractive index between the aqueous and oil phases.
With regard to Claim 9, Reference #1 teaches there is a significant correlation between the concentration of the fat and the viscosity of the combined mixture of fat and aqueous matrix forming materials during processing (page 4 lines 1-3). Therefore, it would have been obvious o one with ordinary skill in the art before the effective filing date of the claimed invention to modify the ratio of the oil and aqueous phase to achieve the desired texture. See MPEP 2144.05(II)(A) "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation."
With regard to Claim 10, Reference #1 teaches the fat simulating composition is a fat simulating structure (page 9 lines 21-26)
With regard to Claim 11, Reference #1 teaches A meat alternative comprising a lean meat-like portion containing a protein, and the fat simulating composition (page 11 Example II).
Claims 3 is rejected under 35 U.S.C. 103 as being unpatentable over Reference #1 (GB 1560178 A) in view of Fung ( US 5308639) and Berton-Carabin et al. (herein referred to as BC, Pickering Emulsions for Food Applications: Background, Trends, and Challenges”)
With regard to Claim 3, Reference #1 teaches the aqueous phase contains at least one selected from a non-animal-derived edible resin, a protein, or a carbohydrate (page 3 lines 9-13). However, Reference #1 is silent to a solid content concentration of the aqueous phase is 10% by volume or more.
BC teaches particle-stabilized emulsions, also referred to as Pickering emulsions, can be used in food applications (abstract). BC teaches Pickering emulsions refer to emulsions that are not physically stabilized by conventional emulsifier molecules but instead by solid colloidal particles (Pickering emulsions). BC teaches in the food industry Pickering emulsions may have advantages in terms of physical stability compared to conventional emulsifiers (“Technological Challenges and Processing”). Other foreseen advantages include chemical stability, nutritional quality, and controlled delivery (“Conclusion”). BC teaches an example of a Pickering emulsion which utilizes an aqueous phase containing 8-12% suspended starch particles (i.e solid content concentration) to stabilize an oil-in-water emulsion (table 1).
Therefore, it would have been obvious to one with ordinary skill in the art before the effective filing date of the modify Reference #1 in view of BC to include 8-12% suspended starch particles in the aqueous phase to act as an emulsifier with advantages compared to conventional emulsifiers. Additionally foreseen advantages such as chemical stability, nutritional quality, and controlled delivery.
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over Reference #1 (GB 1560178 A) in view of Fung ( US 5308639) and Hosomi et al. (herein referred to as Hosomi, JP 2010011781 A).
With regard to Claim 6, Reference #1 teaches the aqueous phase contains at least one edible additive present at a level of less than 20% that can be water soluble (page 7 lines 2-19). Reference #1 teaches it is necessary therefore to select flavoring materials (i.e, additives) which do not themselves or by virtue of a carrier, dispersent or diluent with which they are combined, deleteriously affect either the processing or the final product characteristics of the simulated dipose tissue (page 7 lines 16-19). Reference #1 does not give a temperature at which water solubility is measured, therefore one with ordinary skill in the art would expect that something listed as water soluble with no temperature restrictions would be considered water soluble at standard temperature/room temperature (widely held to be 25℃) and that anything that is considered to be water soluble would have solubility of at least 1% as best as can be determined by the information given by the claim (See 112(b) rejection above)
However, Reference #1 is silent to the edible additive being a reduced starch syrup.
Hosomi teaches a fatty tissue substitute having the texture (chewy texture) and juiciness characteristic of meat fat such as beef tallow or pork fat, and a processed meat food containing the fatty tissue substitute in place of fat ([0040]). Hosomi teaches the fatty tissue substitute contains sweeteners, and more specifically teaches using a reduced starch syrup ([0322]).
Therefore, Hosomi imparts reasoning for obviousness because the teaching shows that a reduced starch syrup was known to be used as a sweetener in fat substitute compositions (i.e, adipose tissue) successfully and published at the time of filing, which means it was within the general skill of one with ordinary skill in the art to select reduced starch syrup as an edible additive, because it would have been obvious to one with ordinary skill in the art to do such a thing on the basis of its suitability for a similar intended use. See MPEP 2144.07 that discussed that when the prior art recognizes something is suitable for a similar intended use/purpose, such a thing is obvious.
Response to Arguments
Applicant's arguments filed 13 March 2026 have been fully considered but they are not persuasive.
First applicant argues that the gel described in reference #1 (referred to as GB ‘178 in applicants remarks) is structurally and functionally different than the gel recited in claim 1. Specifically applicant argues that gel provides heat resistance and facilitates maintenance of the composition structure prior to heating. Applicant argues that reference #1 does not achieve such effects by including a gel containing an edible ionically corsslinkable polymer crosslinker with a cation in the aqueous phase of the fat simulating composition. This argument is not found to be persuasive because reference #1 teaches the claimed ionically crosslinkable polymer by teaching the aqueous phase contains carrageenan (page 5 lines 53-56) and teaches that the carrageenan provides some structural integrity to the matrix phase (page 5 line 54). The examiner acknowledges reference #1 does not teach the addition of a cation for crosslinking, however newly relied upon Fung is further relied upon to teach this newly added limitation. As described above, Fung teaches it was well known in the art to use carrageenan with calcium or potassium (i.e., a cation) in the aqueous phase of an emulsion to simulate a fat composition (Abstract, Col 2 lines 47-63, Col 5 lines 63-67, Col 6 lines 1-3). Thus the combination of reference #1 and Fung teaches all the claimed limitations of claim 1. The composition taught by reference #1 and Fung would then inherently provide heat resistance and facilitate maintenance of the composition structure prior to heating because a chemical composition and its properties are inseparable. See MPEP 2112.01(II) "Products of identical chemical composition can not have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). Therefore applicants arguments are not found to be persuasive.
Next applicant argues that reference #1 does not disclose that the absolute value of the deference between the d-line refractive index of the aqueous phase and the d-line refractive index of the oil phase satisfies the predetermined relationship as cited in claim 1. Further applicant argues that reference #1 does not described a color change simulating a fat portion of livestock meat before and after heating and exhibits a color simulating a fat portion of heated livestock meat after heating. These arguments in relation to specific properties of the composition are not found to be persuasive because the combination of reference #1 and Fung teach all the limitations of claim 1. Therefore the composition taught by the combination of reference #1 and Fung would inherently have the claimed absolute value of the deference between the d-line refractive index of the aqueous phase and the d-line refractive index of the oil phase and exhibit the desired color changes. See MPEP 2112.01(II) "Products of identical chemical composition can not have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). Therefore applicants arguments are not found to be persuasive.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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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/K.I.D./ Examiner, Art Unit 1792
/ERIK KASHNIKOW/ Supervisory Patent Examiner, Art Unit 1792
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