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 01/15/2026 is acknowledged. Applicant elected Group III, Claims 40-48 and 50-53 without traverse. Claims 2-3, 7, 12-16, 18-20, 22-39, and 49 are cancelled. Claims 1, 4-6, 8-11, 17, and 21 are withdrawn. Accordingly, Claims 40-48 and 50-53 correspond to the elected subject matter and are herein acted on the merits.
Information Disclosure Statement
The information disclosure statements (IDS) submitted on 12/13/2023 are in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statements were considered by the Examiner.
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 40-48 and 50 are rejected under 35 U.S.C. 103 as being unpatentable over Van Leeuwen et al. (WO2021078708 A1), hereinafter Van Leeuwen, in view of Toyo et al. (JP2006006318A, cited in the IDS), as evidenced by Solanic 200 (Obtained on 03/03/2026 from URL: <https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact =8&ved=2ahUKEwjGq5bFwISTAxXEHjQIHa0YPDIQFnoECBoQAQ&url=https%3A%2F%2Fleroma.de%2Fapi%2Fv1%2FdownloadData%3FpathName%3Dcdn%2Fseller925%2Fseller-skus% 2Fdocuments%2FSolanic%2520200.pdf&usg=AOvVaw0HFRVQJR8uTpmoy4AuVG6X&opi=89978449>, 01/13/2020).
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 1, 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 dicaffeoyl quinic 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 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, more preferably 0.0003% to 25% 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).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to Toyo to that of Van Leeuwen and add taste-modifying agents such as dicaffeoylquinic acid, dicaffeoylquinic acid derivatives etc. to improve upon the taste of the vegetarian burger of Van Leeuwen, thereby reducing the plant-based protein flavor. Furthermore, 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 and modify according to factors including taste, cost etc.
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.
Claims 51-53 are rejected under 35 U.S.C. 103 as being unpatentable over Van Leeuwen in view of Toyo, and further in view of Islam et al. (J. Agric. Food Chem., Vol. 50, No. 13, 2002, cited in the IDS), hereinafter Islam.
Van Leeuwen does not teach the weight of dicaffeoylquinic acid and derivatives based on the total weight of modifiers.
Toyo teaches production of dicaffeoylquinic acid and tricaffeoylinic acid from sweet potato leaves to obtain an extract powder comprising 2% dicaffeoylquinic acid). However, Toyo does not relate the claimed monocaffeoylquinic constituent and amounts.
Regarding Claims 51-52, Islam teaches the polyphenolic acids in sweet potato leaves to 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 but implied to be at a lower amount than caffeic acid (Abstract; Fig. 3; p. 3720, R, Col., last paragraph).
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%.
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).
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/process/file/efs/guidance/eTD-info-I.jsp.
Claims 40-48 and 50-53 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over Claims 25-26, 29, 31 and 33 of co-pending Application 18,570,050, hereinafter ‘050, in view of Van Leeuwen.
Although the claims at issue are not identical, they are not patentably distinct from each other because they are drawn to the same subject matter and composition components.
Both the instant claims and ‘050 are drawn to methods of reducing plant-based protein flavor. The claims overlap almost in entirety. The difference only lies in the intended use in the steps in instant Claim 40 further requiring addition of a gelling agent and a lipid, which Van Leeuwen teaches. The teachings of Van Leeuwen have been set forth supra.
Therefore, the claims are drawn to the same subject matter and are not patentably distinct from the instant claims.
Conclusion
No claims are allowed.
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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/J.Y.S./Examiner, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792