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 .
This office action is in response to the action dated February 27, 2026, any objections and/or rejections made in previous actions and not repeated below are hereby withdrawn.
Claim Rejections - 35 USC § 102
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 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 13-16 and 19 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Rose (US 20150351427 A1).
With respect to Claim 13, Claim 13 recites “A fibrous composition obtainable by a process according to claim 7”. According to MPEP 2113 I, “Even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself”. Rose et al. teaches a fibrous meat analog composition comprising less than 0.1% emulsifying salts. [First Example] The composition taught by Rose et al. reads on the limitation of a fibrous composition comprising no more than 0.1% emulsifying salts. Therefore, Rose et al. anticipates the invention in claim 13.
With respect to Claim 14, Rose et al. anticipates the invention recited in claim 13, as described above. Additionally, the invention of Rose et al. does not comprise any emulsifying salts. [First Example] Therefore, Rose et al. anticipates the invention recited in claim 14.
With respect to Claim 15, 16, and 19 Rose et al. anticipates the invention recited in claim 13, as described above. Additionally, Rose et al. teaches a food product comprising the fibrous composition and coated with breadcrumbs. [0037] This reads on the limitation of an additional food ingredient, wherein the ingredient comprises an outside layer such as breading. Therefore, Rose et al. anticipates Claims 15, 16 and 19.
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.
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.
Claims 1-5 and 7-9 are rejected under 35 U.S.C. 103 as being unpatentable over Rose et al. (US 20150351427 A1).
With respect to Claim 1, Rose et al. teaches a method of producing a meat-like fibres from proteins by inclusion of milk proteins, [0013] specifically a composition comprising casein, hydrocolloids, [0014] and divalent metal cations. [0017] A specific embodiment teaches a solution comprising water [0030] and casein [0031] with sodium alginate [0031] at a temperature between 70-90°C. [0030] Then, a colloidal solution of micellar casein and calcium chloride is added with stirring, in order to form fibrous structures. [0033]
The instant specification teaches a treatment step comprising increasing the temperature of the liquid to at least 60°C, [Pg. 8, Ln. 4-5] therefore, Rose et al. reads on the limitation of “subjecting said liquid to a treatment step”. Rose et al. reads on the limitation of a hydrocolloid capable of precipitating with metal cations in sodium alginate and a divalent or polyvalent metal cation in calcium chloride.
Rose et al. teaches a casein-containing milk-based liquid in the form of acid casein dissolved in water, as described above, and later includes a step of adding micellar casein to the liquid after treatment. [0033] Rose et al. teaches that the micellar casein is added to the mixture in order to generate fibres slowly, and with more control over the reaction. [0019] According to MPEP 2144.06 II “In order to rely on equivalence as a rationale supporting an obviousness rejection, the equivalency must be recognized in the prior art”. Rose et al. teaches that micellar casein is known the field of endeavor to facilitate the formation of fibres in the process disclosed, and therefore teaches that micellar casein is a suitable equivalent that can be substituted for acid casein.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the teaching of Rose et al. in order to develop a method of producing a fibrous composition comprising treating a casein-containing milk-based liquid to form a calcium ion-depleted liquid, wherein the casein-containing milk-based liquid is a micellar casein concentrate, by heating the liquid, adding a hydrocolloid capable of precipitating with metal cations, and contacting with an aqueous solution comprising divalent metal cations, thereby rendering claim 1 obvious.
With respect to Claim 2, Rose et al. renders obvious the invention recited in claim 1, as described above. The instant specification defines the retentate as the micellar casein concentrate [Pg. 4, Ln. 22-23] derived from reconstituted liquid made from adding water to dried, typically powdered, retentate. [Pg. 4, Ln. 25-27] The limitation of “obtained by subjecting milk to ultrafiltration” and “obtained by subjecting milk to microfiltration” amount to a product by process limitation.
According to MPEP 2113 I, “Even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself”. Therefore, the teaching of Rose et al. of the use of powdered [0045] micellar casein [0019] reads on the limitation of the retentate recited in claim 2. Therefore, Rose et al. renders obvious claim 2.
With respect to Claim 3, Rose et al. renders obvious the invention recited in claim 2, as described above. Additionally, Rose et al. teaches that the starting material, such as micellar casein, may be a powder, so that merely the addition of water is required. [0045] This reads on the limitation of a liquid obtained by reconstituting a dried form of the retentate. Therefore, Rose et al. renders obvious claim 3.
With respect to Claim 4, Rose et al. renders obvious the invention recited in claim 1, as described above. Additionally, Rose et al. teaches sodium alginate. [0031] Therefore, Rose et al. renders obvious claim 4.
With respect to Claim 5, Rose et al. renders obvious the invention recited in claim 1, as described above. Additionally, Rose et al. teaches the addition of calcium chloride [0033] in order to introduce divalent metal cations. [0018] Therefore, Rose et al. renders obvious claim 5.
With respect to Claim 7 and 8, Rose et al. renders obvious the invention recited in claim 1, as described above. Additionally, Rose et al. teaches heating the liquid in the treatment step to between 70-90°C. [0031] Therefore, Rose et al. renders obvious claims 7 and 8.
With respect to Claim 9, Rose et al. renders obvious the invention recited in claim 8, as described above. According to MPEP 2144.05 I, “in the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists.” Rose et al. teaches heating the casein-containing liquid to between 70-90°C. [0031] Therefore, Rose et al. renders obvious claim 9.
Claims 6 and 17 are rejected under 35 U.S.C. 103 as being unpatentable over Rose et al. (US 20150351427 A1) in view of Kweldam (US 20110171359 A1).
With respect to Claim 6 and 17, Rose et al. anticipates the invention recited in claim 1, as described above. Rose et al. is silent to the use of an emulsifying salt.
Kweldam teaches a method of producing a meat analog product comprising mixing a protein, a hydrocolloid capable of precipitating with metal cations, and water, then adding a metal cation with a valency of at least 2 in order to form a fibrous product. [0002] The protein product may be selected from a group comprising sodium caseinate [0018] and the hydrocolloid may be sodium alginate. [0022] Additionally, Kweldam teaches the addition of phosphates in order to form a more homogenous mixture [0021] and can be sodium hexametaphosphate, [0031] an emulsifying salt as taught by the instant specification. [Pg. 17, Ln. 21]
Rose et al. and Kweldam exist within the same field of endeavor in that they both teach a method for producing a milk protein based-meat analog product. Where Rose et al. teaches a variety of milk proteins, Kweldam teaches the use of an emulsifying salt in order to create a more homogenous mixture.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have incorporated the emulsifying salt of Kweldam in the process of Rose et al. to produce a milk protein-based meat analog, in order to increase the homogeneity of the composition, thereby rendering obvious claims 6 and 17.
Claims 10, 11, and 18 are rejected under 35 U.S.C. 103 as being unpatentable over Rose et al. (US 20150351427 A1) in view of Tolstoguzov (CA 924175).
With respect to Claims 10 and 11, Rose et al. teaches the invention in Claim 7, as described above. Rose et al. is silent to the pH of the liquid during the treatment step.
Tolstoguzov et al. teaches a food stuff comprising protein and a fibrous structure that imitates meat and meat products. [Pg. 1, Ln. 1-4] Tolstoguzov et al. teaches that the method disclosed would reduce the laboriousness of the production and dispense with the use of expensive equipment. [Pg. 2, Ln. 14-19] The process taught by Tolstoguzov et al. teaches the use of a colloidal protein solution, coagulated under the effect of a salt comprising a bivalent metal, that is heated, homogenized, and subsequently shaped. [Pg. 3, Ln. 7-15] A colloidal protein composition taught by Tolstoguzov et al. includes casein [Pg. 4, Ln. 22-23] and water-soluble alginate. [Pg. 4, Ln. 3] Tolstoguzov et al. teaches that acceptable bivalent metals include calcium acetate and calcium chloride. [Pg. 5, Ln. 8-9]
Additionally, Tolstoguzov et al. teaches a specific embodiment of the invention wherein a casein-containing liquid is created, comprising 10g of sodium and 100g casein, and treated with heat between 40-60°C and a caustic soda, resulting in a liquid with 7.6 pH. [Pg. 8, Ln. 6-9] This process reads on the inclusion of a pH increasing step through the addition of the caustic soda.
Rose et al. and Tolstoguzov et al. exist within the same field of endeavor in that they are both methods of producing fibrous meat analogs through the treatment of milk protein with alginates and divalent metal cations. Where Rose et al. teaches controlling the reaction through the temperature and concentration of the composition, Tolstoguzov et al. teaches controlling the pH. Additionally, Tolstoguzov et al. teaches the method disclosed produces a product that is cheaper to produce [Pg. 4, Ln. 14-16] and has an increased thermal stability. [Pg. 3, Ln. 21-22].
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have incorporated the pH control of Tolstoguzov et al. in the process of Rose et al. in order to produce a cheaper and more thermally stable product, wherein the pH of the casein-containing milk-based liquid is at least 6.8, and more specifically between 7 and 8, during the treatment step, thereby rendering obvious claims 10 and 11.
With respect to Claim 18, Rose et al. teaches the invention recited in claim 1, as described above. Additionally, Tolstoguzov et al. teaches a casein-containing liquid with 7.6 pH. [Pg. 8, Ln. 6-9] According to the MPEP 2144.05 II, “Where 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”. The recitation of “increasing the pH of the liquid to a value of 7.2 to 7.4” reflects the results of routine experimentation. One of ordinary skill in the art would have been motivated to experiment with the pH of the liquid, as taught in Tolstoguzov et al., in order to determine the best pH for the method.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the teaching of Rose et al. to produce a milk protein-based meat alternative, and incorporate the teaching of Tolstoguzov et al. to produce a cheaper and more thermally stable product, wherein the pH of the composition in the treatment step is between 7.2 and 7.4, thereby rendering obvious claim 18.
Response to Arguments
Applicant's arguments filed February 27, 2026 have been fully considered but they are not persuasive.
Applicant asserts on Page 4, Lines 26-27, that “the fibrous composition of Rose is based on acid casein, which contains residual salts from the acidification process”. Applicant asserts that, due to this difference, “the composition of Rose is not equivalent to the composition recited in claim 13”, on Line 29.
Foremost, applicant is directed to the preamble of Claim 13, wherein the limitation recited is “a fibrous composition obtainable by a process according to claim 7”, emphasis added. This recitation does not limit the composition exclusively to those compositions obtained by the process of claim 7, but allows for compositions that can be obtained through alternative means.
Furthermore, applicant is directed to Example 1 of Rose et al., explained in more detail in the rejections above, wherein the composition comprises no added emulsifying salts and is comprised of significantly more than the acid casein, including the micellar casein recited in claim 1. [Example 1] Therefore the composition taught by Rose et al. would be substantially identical to the product of the method recited in claim 1, and the patentability of a product-by-process claim is determined by the product, as stated in MPEP 2113 I, detailed in the rejection of Claim 13.
Applicant asserts on Page 6, Lines 4-11, that, “when substituting acid casein with micellar casein in the method of Rose, a mixture of micellar casein, sodium alginate, and methylcellulose would be obtained. This mixture is not depleted in free calcium ions, as recited in claim 1, Even if the Office considers the temperature of 70-90°C in paragraph [0030] of rose to be a disclosure of a calcium-binding treatment as defined in step (ii) of claim 1 […] it is apparent that Rose does not teach step (iii) adding to the free calcium ions-depleted liquid a hydrocolloid capable of precipitating with metal cations. Accordingly, substitution of acid casein with micellar casein does not result in the claimed subject-matter”.
Applicant is directed to MPEP 2144.04 IV. C, “selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results” and “selection of any order of mixing ingredients is prima facie obvious”. Applicant concedes that the composition taught by Rose et al. comprises micellar casein and sodium alginate. Therefore, it would have been obvious to one of ordinary skill in the art to derive a method comprising steps wherein the individual components are added in any order, absent any evidence on the record that it would be impossible.
With regard to applicant’s assertion that the calcium binding step taught by Rose et al. would not produce a calcium ions depleted liquid comprising composition when performed on a composition comprising micellar casein and sodium alginate, MPEP 2145 I is considered, wherein the section states, “Arguments presented by applicant cannot take the place of evidence in the record”.
Applicant is directed to MPEP 2145 I again for the assertion on Page 6-7, Lines 28-30, and 1-2, “it is clear that micellar casein, which is negatively charged, cannot be used to replace acid casein in order to undergo interactions with alginate, as both species are negatively charged and will thus repel each other. As Rose teaches that this process results in significantly more uniform fibre formation, the skilled person would understand that micellar casein cannot be used to replace acid casein to achieve the same”.
Applicant asserts on Page 7, Line 6, that there is a “requirement of using acid casein in the method of Rose” and on Lines 15-16, that “the method proposed by Rose to prepare uniform meat-like fibers essentially requires preparation of an emulsion comprising acid casein”. A composition prepared according to the teaching of Rose et al. would teach the use of acid casein and micellar casein. This teaching reads on a casein-containing liquid comprising micellar casein, as would be interpreted by the limitation of claim 1, “wherein the casein-containing milk-based liquid is a micellar casein concentrate”.
MPEP 2111.03 I states, “The transitional term ‘comprising’, which is synonymous with ‘including,’ ‘containing,’ or ‘characterized by,’ is inclusive or open-ended and does not exclude additional, unrecited elements or method steps”. Therefore, the “casein-containing” composition could potentially comprise other elements, such as the acid casein. It would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant application to have interpreted the composition of Rose et al., wherein the mixture comprises acid casein and micellar casein as a micellar casein concentrate.
For this reason, and those enumerated above, applicant’s assertions are found to be unpersuasive, and the rejections of claims 1-11 and 13-19 are maintained.
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.
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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/J.C.M./Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791