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 .
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 9, 11, 13, 14, 18 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.
Amended Claim 9 and dependent claims has the new limitation of “binding food of claim 9”, and it is unclear what this limitation means, or if it is a typographical error. Therefore, the metes and bounds of the amended claim and dependent claims are found to be indefinite.
Claim 18 recites the limitation "the oily component" in line 2 of the claim. There is insufficient antecedent basis for this limitation in the claim as the oily component was only introduced in Claim 15, not Claim 13. For the purposes of examination, the Examiner will treat Claim 18 as if it depended from Claim 15. Appropriate correction is requested.
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.
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 1-9, 11, 13-18, 22-25 are rejected under 35 U.S.C. 103 as being unpatentable over Ajami et al. (USPA 2019/0037893), made of record by Applicant.
Regarding Claims 1-9, 11, Ajami teaches a binding food with meat-like attributes comprising a burger patty or other forms including meatballs, meatloaf, in any shape or form, ground and bound together etc., where the meat-like attributes include meat-like taste, hardens without losing cohesiveness, texture (Paragraphs 4, 10 and 99-103), where the binding food includes structured protein products bound together by one or more binding agents to as to produce food products that have one or more similar or superior attributes compared to animal meat (Paragraph 6). Ajami teaches the binding food/meat-like food includes carbohydrates which includes carboxymethyl cellulose which is a cellulose ether, and also dietary fiber including bamboo fiber, wheat fiber, etc. (Paragraph 108). Ajami teaches the binding food comprises a moisture content in an amount of about 40 to about 60% by weight, with the same moisture content as animal meat (Paragraph 110) and specifically discusses the meat-like food products having about 40% aqueous phase, or about 57% aqueous phase, by weight (Paragraph 112) and teach the meat-like food products comprise from about 30 to about 80% by weight water (Paragraph 117), which overlap with the claimed ranges. Therefore, the claimed ranges and amounts of cellulose ether, dietary fiber and water would have been obvious to one of ordinary skill in the art before the effective filing date of the invention, in light of the teachings of Ajami.
Regarding the claimed limitation of the binding food having an adhesiveness as claimed, the following points are noted: while Ajami does not specifically teach an adhesiveness value for the binding food in units as claimed, Ajami relates the types and amounts of binding agents to cohesiveness and binding of cooked meat-like food products (Paragraph 124). Ajami teaches the binding food does not comprise any animal dietary fibers, animal proteins and animal fats (Paragraph 99), teaches where the food exhibits meat-like physical properties and mouthfeel even without including animal dietary fibers, proteins and animal fats, as set forth above and in light of the teaching of meat-like attributes for the meat-like product. Ajami teaches that the meat-like food products can comprise about 0.5 to about 10% by weight of total carbohydrate and about 0.5 to about 5% by weight of edible fiber (Paragraph 109) and discloses the various celluloses including carboxymethyl cellulose, methyl cellulose, hydroxypropyl methyl cellulose as binding agents and teaches example formulations with about 0.5 to about 1.5% by weight methyl cellulose (Paragraph 123). Therefore, Ajami provides for the cellulose ether in an amount of about 1% by weight and edible fiber such as those disclosed, in an amount of about 1% by weight of the food product, both of which are within the claimed ranges. Ajami therefore teaches and renders obvious to one of ordinary skill in the art before the effective filing date of the invention, a ratio of cellulose ether and insoluble dietary fiber of 1:1, in light of the above ranges of both methyl cellulose and dietary fiber. Lastly, as set forth above, Ajami teaches a water content or moisture content within the claimed range.
While it is not entirely clear what aspect of the binding food contributes to the claimed adhesiveness, it is noted that Applicant’s specification, Paragraph 20 relates the ratio of the cellulose ether and dietary fiber to the disclosed and claimed adhesiveness. Therefore, taking into consideration all of the components of the meat-like food taught by Ajami, with the disclosed meat-like characteristics, where the food product can be provided with cohesion and the claimed amounts and ratios of the claimed cellulose ether and dietary fiber and water content, all of which would be reasonably expected to contribute to adhesiveness of the binding food, one of ordinary skill in the art would have reasonably expected that the adhesiveness would have been comparable, absent any teachings to the contrary.
The specific adhesiveness of the binding food is not met by any reference here because Applicant has chosen to describe his product with physical characteristics that are beyond measurement by this Office and as a practical matter, the Patent Office is not equipped to manufacture products and then obtain prior art products and make physical comparisons therewith. See In re Brown, 59 CCPA 1036, 459 F.2d 531,173 USPQ 685 (1972) at 59 CCPA 1041. Since the above reference teaches a binding food comprising the claimed components in amounts within the claimed ranges and ratios, along with a water content also within the claimed range, it would be expected, absent any evidence to the contrary, that the composition would meet the claimed limitations. Furthermore, it has been found that “[T]he PTO can require an applicant to prove that the prior art products do not necessarily or inherently possess the characteristics of his [or her] claimed product. Whether the rejection is based on inherency’ under 35 U.S.C. 102, on prima facie obviousness’ under 35 U.S.C. 103, jointly or alternatively, the burden of proof is the same...[footnote omitted].” The burden of proof is similar to that required with respect to product-by-process claims. In re Fitzgerald, 619 F.2d 67, 70, 205 USPQ 594, 596 (CCPA 1980) (quoting In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433-34 (CCPA 1977)). MPEP 2112.V.
Regarding Claim 13, as set forth above, Ajami teaches that the meat-like food products can comprise about 0.5 to about 10% by weight of total carbohydrate and about 0.5 to about 5% by weight of edible fiber (Paragraph 109) and teaches the various celluloses including carboxymethyl cellulose, methyl cellulose, hydroxypropyl methyl cellulose as binding agents and teaches example formulations with about 0.5 to about 1.5% by weight methyl cellulose (Paragraph 123). Ajami teaches the meat-like food products comprise from about 30 to about 80% by weight water (Paragraph 117), which overlap with the claimed range. Therefore, the total of cellulose and dietary fiber can be about 6.5% (up to about 5% edible fiber and about 1.5% methyl cellulose as an example), which is within the range as claimed. Therefore, the claimed ranges and amounts of cellulose ether, dietary fiber and water would have been obvious to one of ordinary skill in the art before the effective filing date of the invention, in light of the teachings of Ajami.
Regarding amended Claim 14, as set forth above, Ajami provides ranges for the cellulose ether and dietary fiber to be about 1:1, which meets the ratio range for cellulose ether to dietary fiber. As set forth above, Ajami teaches water in a range of about 30 to about 80% by weight. Applicant’s ratio range is recited as 0.3-2:1:14-22, which can include a ratio of 1:1:14-22. This is also equivalent to a ratio of 0.04:0.04:1 using the upper limit of the water ratio. The amounts taught by Ajami of 1% cellulose ether, 1% dietary fiber and 30% by weight water are also equivalent to a ratio of 0.03:0.03:1, which is close to the ratio claimed. Ajami teaches that a high moisture content prevents the sensation of drying during chewing (Paragraph 110). Therefore, given the goal of providing a meat-like food product having cohesiveness, moisture, textures and flavors that approach meat products, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have optimized the amount of carbohydrates/fibers/binding agents water present in order to arrive at a desirable meat-like end product. It has also been found that, where general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges in the amounts of carbohydrates, fiber and water in the binding food involves only routine skill in the art. MPEP 2144.05 II.
Regarding Claims 15-18, Ajami teaches the binding food/meat-like food product includes oils such as those recited and also teaches an amount of oil in the range of about 15% and 20% by weight of the food product (Paragraphs 107-108), which is within the claimed range. Regarding the ratio recited of cellulose ether, dietary fiber, aqueous component and oil in the ratio of 0.3-2:1:14-22:5-8, since Ajami teaches an amount of oil squarely within the range recited, one of ordinary skill in the art would have reasonably expected the ratio to be in line with the other recited and taught components. Ajami also teaches that fat/oil increases tenderness and juiciness of the meat-like food (Paragraph 107). Therefore, given the goal of providing a meat-like food product having cohesiveness, moisture/juiciness, textures and flavors that approach meat products, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have optimized the amount of oil present in order to arrive at a desirable meat-like end product. It has also been found that, where general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges in the amounts of oil/fat in the binding food involves only routine skill in the art. MPEP 2144.05 II.
Regarding Claims 22 and 24, Ajami teaches and renders obvious the claimed binding food, where the food can be in a variety of shapes and can be ground and cohesively held together, etc., as set forth above in the rejection of Claim 1. Therefore, Ajami is seen to teach a dumpling stuffing in light of Claim 22 only requiring the binding food of Claim 1. As set forth above in the rejection of Claim 3, Ajami is seen to teach where the dumpling stuffing exhibits meat-like physical properties and mouthfeel even without including meats.
Regarding Claim 23, Ajami teaches the binding food also comprises binding agents including various vegetable purees (Paragraph 123), therefore reading on a dumpling stuffing/binding food comprising vegetables.
Regarding amended Claim 25, Ajami teaches a desirable meat-like food product hardens without losing cohesiveness (Paragraph 4), and teaches suitable binding agents and amounts thereof can be related to cohesiveness and binding of the cooked meat-like food products (Paragraph 124) and teaches adding release agents or emulsions to the meat-like food products to provide meat-like cohesiveness and/or binding (Paragraph 168), where the release of binding agents during cooking provides a cohesiveness to the meat-like consumables that is similar to the cohesiveness of animal meat during cooking (Paragraph 186), and teach exemplary formulations having a cohesiveness of about 0.1 to about 3 (Paragraph 213), which includes the range recited. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention for a formulation of a meat-like product/binding food would have a cohesiveness as claimed, in light of the teachings of Ajami and the desire to prepare meat-like food products that have attributes similar to the cohesiveness of animal meat during cooking.
Claim 19 is rejected under 35 U.S.C. 103 as being unpatentable over Ajami et al. (USPA 2019/0037893), made of record by Applicant, and further in view of Sennebogen NPL (2019).
Regarding Claim 19, Ajami is relied upon as above and teaches a meat-like food product and teaches carbohydrates and protein sources that can be included in the food product include soy flour, soy fiber, hydrolyzed soy protein isolate, etc. (Paragraphs 108 and 103), but do not specifically teach textured vegetable protein.
Sennebogen teaches that textured vegetable protein or TVP, is a manufactured soy product that originates from a soy protein isolate, and that is frequently used as a meat replacement and has a texture that resembles ground beef (Page 1). Sennebogen teaches it takes on the flavors of the ingredients it is being cooked with, and it is low in calories, carbohydrates and fat (Page 2). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention for the vegetable protein component of the meat-like product of Ajami to have comprised TVP in light of the teachings of Sennebogen and the known use of TVP as a vegetable-based meat replacement.
Claim 20 is rejected under 35 U.S.C. 103 as being unpatentable over Ajami et al. (USPA 2019/0037893), made of record by Applicant, and further in view of Bone et al. (USPN 4,235,935).
Regarding Claim 20, Ajami teaches of a method of preparing a binding food, comprising mixing a composition, where the claimed components cellulose ether and insoluble dietary fiber can be included, as set forth in the rejection of Claim 1 and (Paragraphs 333-334), and teaches the importance of cohesiveness and binding of the food prior to cooking (Paragraph 124), but does not specifically teach the mixing at the claimed rpm rate.
Bone teaches a process of making a simulated meat comprising proteins, water, oil, starches, where the heat setting proteins acts a binder and include soy protein isolates (Column 3, lines 1-45 and Column 4, lines 65-68 and Column 5, lines 20-25). Bone teaches mixing the ingredients at maximum RPM of the mixer until a smooth paste was formed (Column 9, lines 5-10). While Bone may not specify the RPM of the mixer, the mixer is used at a high RPM in order to provide a smooth paste of the ingredient mixture. Since Ajami also teaches the desirability of cohesiveness and binding of the meat-like product, it would have been obvious to one of ordinary skill in the art for the mixing done by Ajami to have been accomplished at a high RPM in order to ensure maximum cohesiveness and binding of the ingredients is obtained, and to choose a desirable RPM in order to most efficiently carry out mixing of the ingredients. It is noted that Applicant’s disclosure does not appear to disclose an element of criticality associated with the claimed mixing speed. In addition, where general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges in the RPM of the mixing speed involves only routine skill in the art. MPEP 2144.05 II.
Claim 21 is rejected under 35 U.S.C. 103 as being unpatentable over Ajami et al. (USPA 2019/0037893), made of record by Applicant, and Bone et al. (USPN 4,235,935), and further in view of Sennebogen NPL (2019).
Regarding Claim 21, Ajami in view of Bone are taken as cited above in the rejection of Claim 20 and in combination teach and render obvious the claimed method of making the meat-like food product and teaches carbohydrate and protein sources that can be included in the food product include soy flour, soy fiber, hydrolyzed soy protein isolate, etc. (Ajami, Paragraphs 108 and 103), but do not specifically teach textured vegetable protein.
Sennebogen teaches that textured vegetable protein or TVP, is a manufactured soy product that originates from a soy protein isolate, and that is frequently used as a meat replacement and has a texture that resembles ground beef (Page 1). Sennebogen teaches it takes on the flavors of the ingredients it is being cooked with, and it is low in calories, carbohydrates and fat (Page 2). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention for the vegetable protein component of the meat-like product of Ajami in view of Bone to have comprised TVP in light of the teachings of Sennebogen and the known use of TVP as a vegetable-based meat replacement.
Claims 30 and 31 are rejected under 35 U.S.C. 103 as being unpatentable over Ajami et al. (USPA 2019/0037893), made of record by Applicant, in view of East Meets Kitchen NPL, “Vegan Dim Sum: ““pork” and cabbage dumplings” (2016).
Regarding amended Claims 30 and 31, Ajami is taken as cited above in the rejection of Claim 22 and is seen to teach a dumpling stuffing in light of the teaching of the binding food, and teaches the binding food/meat-like food product can be used in various forms, including ground, as set forth above. Ajami teaches the meat-like food can have no cholesterol and less than 0.5% by weight saturated fats (Paragraph 107). Ajami does not specifically teach of a dumpling comprising a dumpling skin and the dumpling stuffing.
East Meets Kitchen NPL teaches of making fake pork and cabbage dumplings using texturized vegetable protein, garlic, ginger, cabbage, scallions, that is added to dumpling wrappers to make the fake pork and cabbage dumplings (Page 1 and You-Tube video). The NPL shows the texturized vegetable protein as a ground product (video picture of stuffing). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have used the meat-like food product taught by Ajami, in a ground state, in other types of foods such as dumplings, as a filling for a dumpling skin or wrapper, in light of the teachings of the NPL.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JENNA A WATTS whose telephone number is (571)270-7368. The examiner can normally be reached Monday-Friday. 9am-4:30pm.
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JENNA A. WATTS
Primary Examiner
Art Unit 1791
/JENNA A WATTS/Primary Examiner, Art Unit 1791 11/5/2025