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 .
Status of the Claims
Receipt of Remarks/Amendments filed on 06/05/2026 is acknowledged. Claims 1- 39, 49 and 52 are cancelled. Claims 40 and 53 have been amended. Claims 41-48, 50-51 and 53 are presented for examination on the merits for patentability.
Rejection(s) not reiterated from the previous Office Action are hereby withdrawn. The following rejections are either reiterated or newly applied. They constitute the complete set of rejections presently being applied to the instant application.
Terminal Disclaimer
The terminal disclaimer filed on 06/05/2026 disclaiming the terminal portion of any patent granted on this application which would extend beyond the expiration date of 18/570,050 has been reviewed and is accepted. The terminal disclaimer has been recorded.
Modified Rejection As Necessitated by the Amendment Filed 06/05/2026
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 41-48, 50-51 and 53 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 40 recites “wherein a sensory modifier comprising 20% (wt) or more of one or more dicaffeoylquinic acids or salts thereof and one or more monocaffeoylquinic acids and salts.” One skilled in the art would not know from the claim as written whether the “20% (wt) or more” refers to only the one or more dicaffeoylquinic (DCQ) acids or salts thereof, or if it includes the monocaffeoylquinic (CQ) acids or salts. For compact prosecution, the Examiner will interpret the recitation in Claim 40 to mean that the “20% (wt) or more” only refers to “one or more dicaffeoylquinic acids or salts”, i.e. does not include the one or more monocaffeoylquinic acids and salts. However, clarification is required.
Claims 41-48, 50-51 and 53 depend from Claim 40 and are also rejected.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 41-48, 50-51 and 53 are rejected under 35 U.S.C. 103 as being unpatentable over Van Leeuwen et al. (Of record), hereinafter Van Leeuwen, in view of Toyo et al. (Of record) and Islam (Of record), hereinafter Islam , as evidenced by Solanic 200 (Of record).
Van Leeuwen provides a process for preparing a vegetarian burger comprising the step of mixing hydrated textured vegetable protein (TVP) pieces with methyl cellulose, plant protein concentrate, fat, water and defibrillated hydrated texturized fibrous vegetable protein material to produce a vegetarian dough (Abstract).
Regarding Claim 40, Van Leeuwen expressly teaches preparing vegan burgers by first hydrating TVP, reading on step (i); the hydrated TVP was ground, and to which was added the gelling agent methyl cellulose, potato protein and water, and mixed rendering steps (ii)-(iii) obvious (Example 1). Flavouring, spices and salt were also added, followed by palm stearin powder and sunflower oil, reading on step (iv) (Example 1). The sensory attributes of the vegan burger of Van Leeuwen obtained an average score of 4 out of 5 (Example 2).
Van Leeuwen does not teach any of the compounds and concentration range in Claim 40.
Toyo teaches taste-modifying agent containing at least one compound selected from the group consisting of dicaffeoylquinic acid, dicaffeoylquinic acid derivatives, tricaffeoylquinic acid and tricaffeoylquinic acid derivatives, to provide a food composition containing the taste-modifying agent (Abstract; Claim 1). Toyo teaches that these derivatives are found in sweet potato foliage (pp. 4-5). Toyo teaches that these substances have antioxidant activity, antibacterial activity etc., and makes it easy to ingest food by improving their taste (p. 2, paragraphs 1, 2, and 11; p. 11, last paragraph). Preferably, the food composition contains dicaffeoylquinic acid or a derivative thereof in an amount of 0.0001 % to 50% by mass (p. 7, 4th paragraph). Toyo teaches that panelists reported alleviation pf unpleasant taste in solutions with specific quinic acid derivative (p. 10, 2nd paragraph). Because Toyo teaches the food composition dicaffeoylquinic acid or derivative at 50%, the amount of the combination of the combination of dicaffeoylquinic acid and monocaffeoylquinic acid in the sensory modifier composition would necessarily be higher than 50%.
However, Toyo does not relate the claimed monocaffeoylquinic constituent and amounts.
Islam teaches the polyphenolic acids in sweet potato leaves also contain monocaffeoylquinic acid (Figs. 1 and 2). The sweet potato leaves contain 3,5-di-O-caffeoylquinic acid (1528 mg/100 g dry powder) > 4,5-di-O-caffeoylquinic acid (706 mg/100 g dry powder) > 3-O-caffeoylquinic acid (332 mg/100 g dry powder) > 3,4-di-O-caffeoylquinic acid (277 mg/100 g dry powder) > 3,4,5-tri-O-caffeoylquinic acid (71 mg/100 g dry powder) > caffeic acid (63 mg/100 g dry powder) (Abstract; p. 3720, R, Col., last paragraph). The main phenolic compound in sweet potato leaves is 3,5-di-O-caffeoylquinic acid followed by 4,5-di-O-caffeoylquinic acid (p. 3720, R, Col., last paragraph; Figs. 1 and 3). Chlorogenic acid was also present in the extract (Abstract; Fig. 3; p. 3720, R, Col., last paragraph). Islam teaches that these polyphones and phenolic compounds protect the human body from oxidative stress, and that 3-O-caffeoylquinic acid has various physiological functions (Introduction, 2nd paragraph; p. 3720, last paragraph to p. 3721, 1st paragraph). As such, Claim 51 is also rendered obvious.
By Examiner’s calculation, the total concentration of dicaffeoylquinic acid is 2511 mg/100 g; the total concentration of monocaffeoylquinic acid is 332 mg/100 g; the total concentration of tricaffeoylquinic acid is 71 mg/100 g; and caffeic acid at 63 mg/100 g. Accordingly, the amount of dicaffeoylquinic acid in the extract based on these sensory modifiers is 2511 mg/100 g; the total concentration of monocaffeoylquinic acid is 332 mg/100 g; the total concentration of tricaffeoylquinic acid is 71 mg/100 g; and caffeic acid at 63 mg/100 g. As such, the amount of dicaffeoylquinic acid based on caffeic acid derivatives disclosed is > 84%.
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to Toyo and Islam to that of Van Leeuwen and add taste-modifying agents such as dicaffeoylquinic acid, monocaffeoylquinic acid etc. to improve upon the taste of the vegetarian burger of Van Leeuwen, thereby reducing the plant-based protein flavor per Toyo’s teaching. One would have been motivated to do so because Toyo has taught that these compounds have many beneficial health effects. One would start at the concentration taught by Toyo for dicaffeoylquinic acid and modify according to factors including taste, cost etc. One would be motivated to incorporate different phenolic compounds from sweet potato in the sensory modifier composition of Van Leeuwen because Islam has taught that these compounds, inclusive of monocaffeoylquinic acid, have protective activities and physiological functions.
Regarding Claim 41, Van Leeuwen teaches the water content of the vegetarian burger lies in the range of 50-70% (p. 7, lines 20-21).
Regarding Claim 42, Van Leeuwen teaches the total fat content of the vegetarian burger preferably lies in the range of 8-22%, which overlaps with the claimed range (p. 8, lines 1-2). In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art", a prima facie case of obviousness exists. See MPEP 2144.05.
Regarding Claim 43, Van Leeuwen teaches the preferred liquid oil includes the sunflower oil and soybean oil (p. 16, lines 20-21).
Regarding Claim 44, Van Leeuwen teaches the hydrated TVP microfibers preferably constitute 2-28 wt.%, of the vegetarian burger (wet weight), which is within the claimed weight (p. 12, lines 5-7).
Regarding Claim 45, Van Leeuwen teaches the vegetable protein selected from soy protein, legume protein, pea protein, wheat protein etc. (p. 7, lines 26-30). Van Leeuwen expressly teaches potato protein (Table 1; Examples 1 and 3).
Regarding Claims 46-47, Van Leeuwen teaches potato protein isolate at 0.5% (Table 1), which is a powder with >= 85 % solubility as evidenced by Solanic 200.
Regarding Claim 48, Van Leeuwen expressly teaches incorporating 2.2% methylcellulose (Table 1), and teaches a range of 2-12% methyl cellulose, which touches the claimed range.
Regarding Claim 50, Toyo teaches the taste modifier is dicaffeoylquinic acid, dicaffeoylquinic acid derivatives, tricaffeoylquinic acid, and tricaffeoylquinic acid derivatives or combination thereof at more preferably 0.0003 mass% to 25 mass% (p. 2, 1st paragraph; p. 7, 4th paragraph). As such, one of ordinary skill in the art would find it obvious to adjust the amount of taste modifier as a matter of experimentation and optimization. The adjustment of particular conventional working conditions (e.g., determining result effective amounts of the ingredients beneficially taught by the cited references) is deemed merely a matter of judicious selection and routine optimization which is well within the purview of the skilled artisan. Accordingly, this type of modification would have been well within the purview of the skilled artisan and no more than an effort to optimize results. See MPEP 2144.05.
Regarding Claim 53, by Examiner’s calculation, the total concentration of dicaffeoylquinic and monocaffeoylquinic acids is >95%.
The strongest rationale for combining references is a recognition, expressly or impliedly in the prior art or drawn from a convincing line of reasoning based on established scientific principles or legal precedent, that some advantage or expected beneficial result would have been produced by their combination. In re Sernaker, 702 F.2d 989, 994-95, 217 USPQ 1, 5-6 (Fed. Cir. 1983). See also Dystar Textilfarben GmbH & Co. Deutschland KG v. C.H. Patrick, 464 F.3d 1356, 1368, 80 USPQ2d 1641, 1651 (Fed. Cir. 2006). All of the claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions and the combination would have yielded predictable results to one of ordinary skill in the art at the time of the invention. Note: MPEP 2141 KSR International CO. v. Teleflex Inc. 82 USPQ 2d 1385 (Supreme Court 2007).
Response to Remarks:
Applicant argues that Van Leeuwen’s vegetarian burger already having favorable sensory properties, has a score of 4 out of 5 is a positive sensory result, and therefore does not suffer undesirable taste or taste defect requiring correction. Applicant alleges that there is no reason to add Toyo' s taste modifier.
The Examiner has weighed this argument but was not persuaded. Applicant is reminded that “[T]he motivation in the prior art…does not have to be identical to that of the applicant to establish obviousness.” See In re Kemps, 97 F.3d 1427, 1430 (Fed. Cir. 1996). Applicant is further reminded that “[i]n determining whether the subject matter of a patent claim is obvious, neither the particular motivation nor the avowed purpose of the patentee controls… [A]ny need or problem known in the field of endeavor at the time of the invention and addressed by the patent can provide a reason for combining the elements in the manner claimed.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 419-20 (2007). As Applicant noted, Van Leeuwen’s burger scored 4 out of 5 in sensory test. The Examiner also notes that the aftertaste/off-flavor is 3.7 out of 5 (Table 1). As such, there is still a lot of room for improvement. The known work in the field of vegetarian burger would have prompted variations in the same field based on design incentives or other market forces where the variations are predictable to one of ordinary skill in the art.
Applicant argues that the Office Action does not identify any teaching in Toyo directed to reducing plant-based protein flavor in a meat substitute, textured plant-based protein etc. but rather concerns different food and beverages with the taste modifiers reducing the unpleasant taste, reducing acidity, or producing a faint sweetness.
As noted above, the rationale in the prior art does not need to be the same as the Applicant’s. Van Leeuwen’s sensory attributes can be improved by sensory modifiers, making Toyo a relevant art because it teaches sensory modifiers. Furthermore, one would add the claimed polyphenolic compounds because of their many beneficial health effects as taught by Toyo.
Applicant argues that Toyo does not disclose the claimed combined mono- and dicaffeoylquinic wt% relationship.
Toyo does not need to disclose the relationship of monocaffeoylquinic acid to the dicaffeoylquinic acid. The claim requires the sensory modifier to comprise dicaffeoylquinic acid at a specific amount, but does not recite any amount of monocaffeoylquinic acid. Further, Toyo already teaches up to 50% dicaffeoylquinic acid or its derivative in a food composition. Islam is only relied on to teach the mono-caffeoylquinic acid.
Applicant argues that Islam does not teach the claimed amounts because the Office did not use the 100g dry powder of Islam. Applicant argues that amended claim 40 does not recite a percentage within a selected subset of caffeic acid related analytes, but based on the total weight of the sensory modifier.
Toyo Preferably, the food composition contains dicaffeoylquinic acid or a derivative thereof in an amount of 0.0001 % to 50% by mass (p. 7, 4th paragraph). Toyo teaches that panelists reported alleviation pf unpleasant taste in solutions with specific quinic acid derivative (p. 10, 2nd paragraph). Because Toyo teaches the food composition dicaffeoylquinic acid or derivative at 50%, the amount of the combination of the combination of dicaffeoylquinic acid and monocaffeoylquinic acid in the sensory modifier composition would necessarily be higher than 50%.
Applicant argues the Office has not articulated a sufficient rationale to combine the references in the specific manner required by amended Claim 40 because Van Leeuwen does not identify a plant-based protein flavor problem or other sensory deficiency, and Toyo does not teach reducing plant-based protein flavor in meat substitutes; and Islam is cited only for analytical measurements in sweet potato leaf dry powder, not for formulation as a sensory modifier for Van Leeuwen' s burger.
All of the argument have been addressed supra. Further, the strongest rationale for combining references is a recognition, expressly or impliedly in the prior art or drawn from a convincing line of reasoning based on established scientific principles or legal precedent, that some advantage or expected beneficial result would have been produced by their combination. In the instant case, the prior art as a whole has taught the benefit of the phenolic compounds in sweet potato, including the dicaffeoylquinic and monocaffeoylquinic acid, ranging from sensory modifier to health functions, which provides more than sufficient motivation for a skilled artisan to use in a vegan burger.
Conclusion
No claims are allowed.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JANICE Y SILVERMAN whose telephone number is (571)272-2038. The examiner can normally be reached M-F, 10-6 EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Erik Kashnikow can be reached on (571) 270-3475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/J.Y.S./Examiner, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792
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