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 Group I, claims 1-7 and 9, and the species of soy protein in the reply filed on May 7, 2026 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 Claims 8 and 10-17 have been withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention.
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.
Notes:
The term “low moisture extrudate” in claim 2 has been defined in the instant specification, page 9, third paragraph, as a product of low- moisture extrusion, wherein extrusion is carried out at a moisture content of less than 40%.
The term “GDL content” in claim 7 has been defined in the instant specification page 4 lines 1-3, as the total amount of glucono delta-lactone and gluconic acid and salt(s) thereof by dry weight.
The term “substantially aligned” in claim 9 has been defined in the instant specification page 17, first full paragraph as plant protein fibers or macrostructural fibrous elements present in the extrudate contiguous to each other at less than approximately a 45 degree angle when viewed in a horizontal plane.
Claims 1-7 and 9 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Orcutt et al (US 2008/0260913).
Regarding claims 1-6, Orcutt et al (Orcutt) teaches of simulated animal meat compositions (abstract) comprising:
about 40-100% by weight protein selected from the group including soy protein (paragraphs 25, 26, 31, 32, 34-37, and 46);
about 0.025-40%, most preferably about 0.04-33% color retention aid including calcium alginate or alginate and a calcium salt (paragraphs 3-4, 19, 65, 66, 67, and 71); and
generally, a moisture content of less than 10% (paragraph 13).
Orcutt also teaches a cross-linking agent, including calcium salt to facilitate formation (paragraph 28).
Regarding the claimed product as an extrudate as recited in claim 1, and as a low moisture extrudate as recited in claim 2, the claimed limitations are product by process limitations and “[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). In the instant case, the claimed process would result in a shaped product. Regardless, Orcutt teaches that the compositions are extrudates formed with low moisture content extrusion at a moisture content of about 1-35% (paragraphs 26, 73-75 and 85).
Regarding the extrudate as comprising by dry weight about 60-90% plant protein as recited in claim 1a and from about 1-10% hydrocolloid selected from the group including alginate as recited in claim 1b, as discussed above, the extrudate of Orcutt contains about 40-100% by weight protein selected from the group including soy protein; about 0.025-40% color retention aid including calcium alginate or alginate and a calcium salt; and generally, a moisture content of less than 10%. Thus, the dry weight the product of Orcutt would be from 90-100%, and by dry weight the product would comprise up to about 40-100% plant protein, and up to about 0.025-40%, most preferably about 0.04-33% alginate.
Regarding the use of 0-14% starch as recited in claim 1c, as Orcutt teaches that the other ingredients including starch “may be utilized” (paragraphs 27 and 126), the teachings of Orcutt encompass the extrudate as free of starch which encompass the claimed range.
Regarding claim 7, Orcutt teaches the composition comprises about 0.1-15% on a dry mater basis of a pH-lowering agent selected from the group including glucono delta lactone (paragraphs 56-57).
Regarding claim 9, as discussed above Orcutt teaches of simulated meat compositions from soy protein. Orcutt teaches that the product comprises protein fibers, i.e. soy protein fibers, that are substantially aligned, typically at an average of at least 55% (paragraphs 29 and 115).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure: US 3627536 teaches proteinaceous fibers of simulated meat wherein gluconic acid makes the fibers become harder (abstract and column 2 lines 13-18).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KELLY BEKKER whose telephone number is (571)272-2739. The examiner can normally be reached Monday-Friday 8am-3:30pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Erik Kashnikow can be reached at 571-270-3475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
KELLY BEKKER
Primary Patent Examiner
Art Unit 1792
/KELLY J BEKKER/Primary Patent Examiner, Art Unit 1792
Prosecution Insights