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 3-5, 8, 10-18 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.
Regarding claims 3-5, 8, 10-11, and 14-16, the phrase "such as" renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d). For the purposes of examination, the limitation after the phrase “such as” in the claims will not be considered as further limiting the claim.
Due to their dependence on claim 10, claims 12-13 and 17-18 are also rejected.
Claim 11 recites the limitation “the liquid yeast” in line 1. There is insufficient antecedent basis for this limitation in the claim and claim 10, the claim upon which claim 11 depends. For the purposes of examination, the limitation will be interpreted as “the yeast”, as recited in claim 10.
Claim 13 recites the limitation, “the second protein ingredient” in line 3. There is insufficient antecedent basis for this limitation in the claim and claim 10, the claim upon which claim 13 depends. For the purposes of examination, claim 13 will be interpreted as depending on claim 12, due to the recitation of “a secondary protein ingredient” in claim 12.
Claim 18 recites the limitation “wherein the food product comprises a textured vegetable protein, an alternative meat, an application thereof, or a combination thereof”. It is unclear what is defined by a food product comprising an application thereof.
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.
Claim 9 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by Strommer et al. (US 3754926).
With respect to Claim 9, Strommer et al. teaches a texturized food product [Col. 1, Ln. 32-33] which reads on a food product as recited in claim 9. 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”. Additionally, Strommer et al. teaches a method of producing a texturized protein material in an apparatus under elevated temperature and pressure. [Col. 1, Ln. 32-34] Strommer et al. teaches the apparatus used can have pressures as high 140 psi, or 9.65 bar, and as low as 15 psi, or 1 bar, and the temperature in the present invention is at least 250°F, or 121°C. [Col. 5, Ln. 1-9] Strommer et al. teaches that the composition may be produced by a protein such as yeast, [Col. 4, Ln. 38] and that the protein content can be between 30-95%. [Col. 4, Ln. 43-44] Additionally, Strommer et al. teaches the moisture content of the mixture to be texturized can have a moisture content of up to 40%. [Col. 4, Ln. 54] This mixture reads on a liquid yeast and Strommer et al. does not teach the incorporation of RNA in the composition.
In a specific embodiment, Strommer et al. teaches a composition that comprises two different amounts and types of protein. [Example VII] One of ordinary skill in the art would have been able to envisage a composition comprising two proteins, wherein one protein is a yeast liquid.
Therefore, Strommer et al. anticipates the invention recited in claim 9.
Claim Rejections - 35 USC § 103
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 1-8, 10-13 and 15-18 are rejected under 35 U.S.C. 103 as being unpatentable over Strommer et al. (US 3754926).
With respect to Claim 1, Strommer et al. teaches a method of producing a texturized protein material in an apparatus under elevated temperature and pressure. [Col. 1, Ln. 32-34] Strommer et al. teaches the apparatus used can have pressures as high 140 psi, or 9.65 bar, and as low as 15 psi, or 1 bar, and the temperature in the present invention is at least 250°F, or 121°C. [Col. 5, Ln. 1-9] Strommer et al. teaches that the composition may be produced by a protein such as yeast, [Col. 4, Ln. 38] and that the protein content can be between 30-95%. [Col. 4, Ln. 43-44] Additionally, Strommer et al. teaches the moisture content of the mixture to be texturized can have a moisture content of up to 40%. [Col. 4, Ln. 54] This mixture reads on a liquid yeast and Strommer et al. does not teach the incorporation of RNA in the composition.
In a specific embodiment, Strommer et al. teaches a composition that comprises two different amounts and types of protein. [Example VII] One of ordinary skill in the art would have been able to envisage a composition comprising two proteins, wherein one protein is a yeast liquid.
The ranges of temperature, pressure, and liquid yeast recited in claim 1 overlap with the ranges taught by Strommer et al. According to MPEP 2144.05 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”.
Additionally, the instant specification teaches that the RNA content of brewer’s yeast is reduced through thermo-mechanical processing, [0026] such as that recited in the instant claim. According to MPEP 2112.01 I, “Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established”. The method of production taught by Strommer et al. is substantially identical to the method recited in the instant claim, therefore, the amount of RNA in the composition produced by the method according to Strommer et al. should have a substantially identical amount of RNA.
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 Strommer et al. to produce a food product from a method of processing liquid yeast, wherein the method comprises thermo-mechanically processing a mixture of 40-80% liquid yeast, a second protein, and less than 4% ribonucleic acid at a temperature of at least 90°C and a pressure of at least 8 bar, thereby rendering claim 1 obvious.
With respect to Claims 2-4, Strommer et al. teaches the invention recited in claim 1, as described above. Additionally, Strommer et al. teaches the apparatus used can have pressures as high 140 psi, or 9.65 bar, and as low as 15 psi, or 1 bar, and the temperature in the present invention is at least 250°F, or 121°C. [Col. 5, Ln. 1-9] Strommer et al. teaches that the composition may be produced by a protein such as yeast, [Col. 4, Ln. 38] and that the protein content can be between 30-95%.
In a specific embodiment, Strommer et al. teaches a composition that comprises two different amounts and types of protein at a percentage of one protein is 70 parts and the secondary protein is 30 parts to a total of 114.3 parts. [Example VII] One of ordinary skill in the art would have been able to envisage a composition comprising two proteins, wherein one protein is a yeast liquid, wherein the liquid yeast is about 60% and the secondary protein is about 26%. These values fall within the range recited for the primary and secondary proteins in claims 3 and 4 respectively.
The ranges of pressure and temperature taught by Strommer et al. overlap with the ranges recited in claim 2. According to MPEP 2144.05 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”. Additionally, the mixture is subjected to the elevated temperature and pressure for an undisclosed amount of time but at a rate of 8 lbs per minute. [Example IV] The recitation of subjecting the mixture to an elevated temperature and pressure for between 1-5 minutes amounts to the results of routine optimization. The general conditions of subjecting the mixture to an elevated temperature and pressure for a period time is taught by Strommer et al. 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 produced a food product according to the method recited in claim 1, wherein the temperature ranges between 90-180°C, the pressure is between 8-150bar, for between 1 and 5 minutes, and wherein the liquid yeast is between 40-80% and the secondary protein is between 20-60%, thereby rendering claims 2-4 obvious.
With respect to Claims 5-8, Strommer et al. teaches the invention recited in claim 1, as described above. Additionally, Strommer et al. teaches the mixture may comprise proteins sourced from microbials, vegetable, or animal sources, in addition to yeast, [Col. 4, Ln. 36-39] and that the proteins may be in the form of concentrate, isolate, or powdered. [Col. 4, Ln. 40-42] Strommer et al. teaches the mixture is texturized by a process comprising steam pressure and elevated temperature, [Col. 1, Ln. 32-34] and is expulsed through a nozzle. [Col. 4, Ln. 1] This process reads on an extrusion process. Strommer et al. teaches the yeast powder is sourced from a distributer that produces brewer’s yeast and the mixture is hydrated before processing, [Example IV] which reads on the limitation of the liquid yeast being produced through a dry yeast mixed with a liquid. Therefore, Strommer et al. renders obvious claims 5-8.
With respect to Claim 10, Strommer et al. teaches the invention recited in claim 9, as described above. Strommer et al. teaches a food composition consisting of yeast flour at 20.5% moisture content, [Example IV] resulting in a yeast content of 79.5%. Additionally, the instant specification teaches that the RNA content of brewer’s yeast is reduced through thermo-mechanical processing, [0026] such as that recited in the instant claim. According to MPEP 2112.01 I, “Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established”.
The method of production taught by Strommer et al. is substantially identical to the method recited in the instant claim, therefore, the amount of RNA in the composition produced by the method according to Strommer et al. should have a substantially identical amount of RNA. 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 Strommer et al. to produce a food composition comprising at least 20% yeast and less than 4% RNA by weight, thereby rendering obvious claim 10.
With respect to Claim 11, Strommer et al. teaches the yeast powder is sourced from a distributer of brewer’s yeast. [Example IV]
With respect to Claim 12, Strommer et al. teaches the invention recited in claim 10, but Strommer et al does not teach a single embodiment comprising a yeast protein and a secondary protein. Strommer et al. teaches the mixture may comprise proteins sourced from microbials, vegetable, or animal sources, in addition to yeast, [Col. 4, Ln. 36-39] and that the proteins may be in the form of concentrate, isolate, or powdered. [Col. 4, Ln. 40-42] Additionally, in a specific embodiment, Strommer et al. teaches a composition that comprises two different amounts and types of protein at a percentage of one protein is 70 parts and the secondary protein is 30 parts to a total of 114.3 parts. [Example VII] One of ordinary skill in the art would have been able to envisage a composition comprising two proteins, wherein one protein is a yeast and the secondary protein is about 26%. Therefore, Strommer et al., renders obvious claim 12.
With respect to Claim 13, Strommer et al. teaches the invention recited in claim 12, as described above. 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”. Additionally, Strommer et al. teaches the mixture is texturized by a process comprising steam pressure and elevated temperature, [Col. 1, Ln. 32-34] and is expulsed through a nozzle. [Col. 4, Ln. 1] This process reads on a thermo-mechanical process. Therefore, Strommer et al. renders obvious claim 13.
With respect to Claim 15, Strommer et al. teaches the invention recited in claim 13, as described above. 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”. Additionally, Strommer et al. teaches the mixture is texturized by a process comprising steam pressure and elevated temperature, [Col. 1, Ln. 32-34] and is expulsed through a nozzle. [Col. 4, Ln. 1] This process reads on an extrusion process. Therefore, Strommer et al. renders obvious claim 15.
With respect to Claim 16, Strommer et al. teaches the invention recited in claim 13, as described above. Strommer et al. teaches that the composition may be produced by a protein such as yeast, [Col. 4, Ln. 38] and that the protein content can be between 30-95%. [Col. 4, Ln. 43-44] Additionally, Strommer et al. teaches the moisture content of the mixture to be texturized can have a moisture content of up to 40%. [Col. 4, Ln. 54] This mixture reads on a liquid yeast and the range of liquid yeast recited in claim 16 overlaps with the ranges taught by Strommer et al. According to MPEP 2144.05 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 the teaching of Strommer et al. in order to produce a food product comprising a mixture of liquid yeast wherein the range of yeast is between 40-80%, thereby rendering obvious claim 16.
With respect to Claim 17, Strommer et al. teaches the invention recited in claim 10, as described above. Additionally, Strommer et al. teaches the mixture can have a protein content as low as 30%, [Col. 4, Ln. 43] wherein the protein is moisturized before texturization. [Col. 4, Ln. 56-57] The recitation of the yeast comprising a range of 3-20% amounts to routine optimization. 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”. One of ordinary skill in the art would have been motivated to determine the optimal concentration of yeast protein in order to produce a food product with the best nutritional and organoleptic properties.
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 Strommer et al. in order to produce a food product comprising yeast protein in an amount between 3-20% based on the total food product, thereby rendering claim 17 obvious.
With respect to Claim 18, Strommer et al. teaches the invention recited in claim 10, but Strommer et al does not teach a single embodiment comprising a yeast protein and a secondary protein. In a specific embodiment, Strommer et al. teaches a composition that comprises two different amounts and types of proteins that are texturized by the method taught. [Example VII] One of ordinary skill in the art would have been able to envisage a composition comprising two proteins, wherein one protein is a yeast and the secondary protein is a texturized vegetable protein. Therefore, Strommer et al. renders obvious claim 18.
Claim 14 is rejected under 35 U.S.C. 103 as being unpatentable over Strommer et al. (US 3754926) in view of Ajami et al. (US 20170105438 A1).
With respect to Claim 14, Strommer et al. teaches the invention recited in claim 13, as described above, but is silent to an embodiment of the invention comprising between 4-25% solids.
Ajami et al. teaches a meat-like food product comprising at least 25% by weight protein [0006] that can be produced through various mechanical methods, including but not limited to high pressure homogenization [0240] and heating. [0241] Additionally, Ajami et al. teaches that the protein component can be brewer’s yeast waste [0100] and the moisture content can be between 30-90%. [0110] The resulting composition would comprise of between 70-10% solids.
Strommer et al. and Ajami et al. exist within the same field of endeavor in that they teach meat-like compositions comprising yeast, and methods of production. Where Strommer et al. teaches a method of extrusion comprising brewer’s yeast and the parameters of pressure and temperature, Ajami et al. teaches a high moisture content meat-like product. Additionally, Ajami et al. teaches that the high moisture content of the invention is preferable due to the prevention of a dry texture.
Additionally, the range of solids taught by Ajami et al. overlaps with the range recited in claim 14. According to MPEP 2144.05 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 the teachings of Strommer et al. in view of Ajami et al. to produce a composition according to the invention recited in claim 13, wherein the solid content of the composition is between 4-25%, thereby rendering claim 14 obvious.
Conclusion
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/J.C.M./Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791