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 .
Election/Restrictions
Applicant’s election of claims 39-54 in the reply filed on December 10, 2025 is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)).
Claims 55-63 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim.
Specification
The use of the term Ziploc, on Pages 11, 12, and 13, which is a trade name or a mark used in commerce, has been noted in this application. The term should be accompanied by the generic terminology; furthermore the term should be capitalized wherever it appears or, where appropriate, include a proper symbol indicating use in commerce such as ™, SM , or ® following the term.
Although the use of trade names and marks used in commerce (i.e., trademarks, service marks, certification marks, and collective marks) are permissible in patent applications, the proprietary nature of the marks should be respected and every effort made to prevent their use in any manner which might adversely affect their validity as commercial marks.
Claim Objections
Claim 41 is objected to because of the following informalities: “blending chitosan, an acid source” should read “blending chitosan and an acid source” wherein the comma is replaced with the word “and”. 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.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 39-54 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 39 recites the limitation "the plant-based meat analog" in step c). There is insufficient antecedent basis for this limitation in the claim. For the purposes of examination, “the plant-based meat analog” will be interpreted to be referring to the “texturized vegetable protein” recited in step a).
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.
Claims 39-54 are rejected under 35 U.S.C. 103 as being unpatentable over Chattopadhyay et al. (Chitosan hydrogel inclusion in fish mince based emulsion sausages: Effect of gel interaction on functional and physicochemical qualities, Intl. Journal of Biological Macromolecules) in view of Schmidt (US 2020/0060310 A1).
With respect to Claim 39, Chattopadhyay et al. teaches fish mince sausages comprising a chitosan gel mixture. [Abstract] The composition comprises a mince, [2.2.1.] and a chitosan gel mixture, [2.2.2.] that is blended together to form a sausage emulsion. [2.2.3.] This process reads on providing a protein mixture, a chitosan-based thermogellable binding mixture, and blending the protein mixture and the binding mixture to form a thermogellable protein composition, but is silent to the use of a textured vegetable protein in the composition.
Schmidt et al. teaches a texturized vegetable protein comprising a myceliated protein. [0009] Schmidt et al. teaches that the TVP taught is high quality and low cost in addition to the regular benefits of a vegetable-based protein source. [0002]
Chattopadhyay et al. and Schmidt et al. exist within the same field of endeavor in that they teach textured food products. Where Chattopadhyay et al. teaches a fish sausage comprising chitosan, Schmidt et al. teaches a textured vegetable protein composition that can be used as a meat analog. Additionally, one would have been motivated to use the meat analog of Schmidt et al. due to the beneficial properties of a vegetarian diet.
A composition, prepared by the method according to Chattopadhyay et al., wherein the fish mince is replaced by the meat analog taught in Schmidt et al., reads on the limitations of claim 39, that is, a composition comprising a texturized vegetable protein is blended with a chitosan-based thermogellable binding mixture, in order to produce a thermogellable textured vegetable protein composition. Therefore, one of ordinary skill in the art, before the effective filing date of the instant invention, would have found it obvious to produce the invention recited in claim 39.
With respect to Claims 40-43 and 50, Chattopadhyay et al. in view of Schmidt et al. teaches the invention recited in claim 39, as described above. Additionally, the composition taught by Chattopadhyay et al. comprises a base in the form of sodium tripolyphosphate and an oil in the form of sunflower oil. [Table 1] Chattopadhyay et al. does not teach adding the oil to the binding mixture before or during the acid or the base after blending the acid into the binding mixture, but MPEP 2144.04 IV C states, “selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results”.
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 teachings of Chattopadhyay et al. in view of Schmidt et al. to produce a TVP composition according to the method of claim 39, wherein the binding mixture comprises chitosan, an acid, sunflower oil, and a base, and sunflower oil is added during or before the acid and the base is added after the acid, thereby rendering claims 40-43 and 50 obvious.
With respect to Claim 44, Chattopadhyay et al. in view of Schmidt et al. teaches the invention recited in claim 41, as described above. Chattopadhyay et al. teaches the use of vinegar, [Table 1] and Schmidt et al. teaches the use of baking soda in the TVP composition. [0042] Baking soda is well known in the art of food production to be a common base, and MPEP 2144.07 states, “The selection of a known material based on its suitability for its intended use supported a prima facie obviousness determination in Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945)”. Therefore, one of ordinary skill in the art would have found it obvious, before the effective filing date of the instant invention, to have used the teaching of Chattopadhyay et al. in view of Schmidt et al. to use baking soda as the base in the method according to claim 41, thereby rendering claim 44 obvious.
With respect to Claims 45 and 46, Chattopadhyay et al. in view of Schmidt et al. teaches the invention recited in claim 41, as described above. The acid and base source taught by Chattopadhyay et al. and Schmidt et al. respectively are identical to the sources recited in claim 41, as described in the earlier rejection, but are silent to the exact concentration of the acetic acid and baking soda, respectively. One of ordinary skill in the art would have been motivated to determine the optimum concentration of acid and base in order to produce a chitosan-based thermogellable mixture with the best organoleptic properties. According to MPEP 2144.05 II, “[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”.
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 Chattopadhyay et al. in view of Schmidt et al. in order to produce a method according to claim 41, wherein the acid source is monoprotic, the base source is able to accept a single proton, and are incorporated at 10-100 mmol acid and 20-120 mmol base per gram chitosan, thereby rendering claims 45 and 46 obvious.
With respect to Claims 47 and 48, Chattopadhyay et al. in view of Schmidt et al. teaches the invention recited in claim 41, as described above. Additionally, Chattopadhyay et al. teaches the oil is incorporated into the composition at about 10g oil to 1g chitosan. [Table 1] One of ordinary skill in the art would have been motivated to determine the optimum amount of oil to add to the chitosan gel in order to determine the optimum organoleptic properties of the composition. According to MPEP 2144.05 II, “[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”.
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 Chattopadhyay et al. in view of Schmidt et al. in order to produce a method according to claim 41, wherein the oil is incorporated between about 0.5-5g, or more specifically 2g, per gram chitosan, thereby rendering claims 47-48 obvious.
With respect to Claim 49, Chattopadhyay et al. in view of Schmidt et al. teaches the invention recited in claim 41, as described above. Additionally, Chattopadhyay et al. teaches that the final pH of the emulsion mixture is between 6.1-6.4. [Figure 2] According to MPEP 2145.05 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.”. 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 Chattopadhyay et al. in view of Schmidt et al. to produce the invention according to claim 41, wherein the pH of the chitosan mixture is between 6.3 and 6.6, thereby rendering claim 49 obvious.
With respect to Claim 51, Chattopadhyay et al. in view of Schmidt et al. teaches the invention recited in claim 39, as described above. Additionally, Chattopadhyay et al. teaches that the chitosan binding mixture can be incorporated up to 0.7%. [Table 1] Chattopadhyay et al. teaches that the addition of the chitosan mixture improves the flavor and textural properties of the protein composition. [Conclusion] One of ordinary skill in the art, would have been motivated to determine the optimum amount of chitosan binding mixture to add in order to produce the composition with the most desirable properties. MPEP 2144.05 II, states, “[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”.
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 Chattopadhyay et al. in view of Schmidt et al. to produce a method of creating a textured vegetable product according to claim 1, wherein the chitosan binding mixture is incorporated at about 1-50% of the total composition, thereby rendering claim 51 obvious.
With respect to Claims 52 and 53, Chattopadhyay et al. in view of Schmidt et al. teaches the invention recited in claim 39, as described above. Additionally, Schmidt et al. teaches a texturized vegetable protein comprising a myceliated protein. [0009]. 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 Chattopadhyay et al. in view of Schmidt et al. to produce a composition according to the process recited in claim 39, wherein the protein is myceliated protein, thereby rendering claims 52 and 53 obvious.
With respect to Claim 54, the recitation of “A thermogellable textured vegetable protein composition made by the method of claim 39” amounts to a product-by-process claim. According to MPEP 2113 I, “[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself”.
Chattopadhyay et al. teaches fish mince sausages comprising a chitosan gel mixture. [Abstract] The composition comprises a mince, [2.2.1.] and a chitosan gel mixture, [2.2.2.] that is blended together to form a sausage emulsion. [2.2.3.] This process reads on a protein mixture comprising a chitosan-based thermogellable binding mixture, but is silent to a textured vegetable protein composition.
Schmidt et al. teaches a texturized vegetable protein comprising a myceliated protein. [0009] Schmidt et al. teaches that the TVP taught is high quality and low cost in addition to the regular benefits of a vegetable based protein source. [0002]
Chattopadhyay et al. and Schmidt et al. exist within the same field of endeavor in that they teach textured food products. Where Chattopadhyay et al. teaches a fish sausage comprising chitosan, Schmidt et al. teaches a textured vegetable protein composition that can be used as a meat analog. Additionally, one would have been motivated to use the meat analog of Schmidt et al. due to the beneficial properties of a vegetarian diet.
A composition comprising the textured vegetable protein composition of Schmidt et al. comprising the chitosan-based binder of Chattopadhyay et al. reads on the product recited in claim 54. 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 Chattopadhyay et al. in view of Schmidt et al. in order to produce the invention recited in claim 54, thereby rendering claim 54 obvious.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Nilsen-Nygaard et al. (Chitosan: Gels and interfacial properties, Polymers, 2015) teaches physical and chemical properties of Chitosan and gels produced comprising chitosan.
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/J.C.M./Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791