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 § 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.
Claims 1-11 are rejected under 35 U.S.C. 103 as being unpatentable over Ajami (USPA 2017/0105438) in view of Oatman (2013), Peas and Crayons NPL (2014), Linford et al. (USPA 2001/0043974), and Balakrishnan et al. (USPA 2021/0274808).
Regarding Claim 1, Ajami teaches a meatless food product (Paragraph 6) comprising various ingredients to impart meat-like attributes, where the food product can be a burger or be formed into (Paragraphs 6-7, 63, 100), wherein the food product includes suitable binding agents which include barley flour and tapioca starch and almond flour, where binding agents can be used in amounts up to about 15% of the meat-like food product (Paragraph 122-123), as well as barley, garlic and onion included as plant sources (Paragraph 261), pinto beans (Paragraph 164), lipids including olive oil, where lipids are preferably included in amounts of about 5 and 25% by weight (Paragraph 107), which includes the claimed amount of olive oil.
Ajami fails to teach cooked barley, onion powder, refried pinto beans, vegetable stock, salt, black pepper, and minced garlic.
Oatman teaches of a few variations of vegetarian based burgers and teaches of a mushroom burger with cooked barley, where the burgers are made with a formulation including 1 cup of cooked barley, along with salt and pepper (Pages 1-3). Therefore, since Ajami teaches of the use of barley flour and barley in general as a suitable ingredient for the meatless food product that can be shaped into burgers, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have included cooked barley as the binding agent in the vegetable based burgers. In addition, it would have been obvious to one of ordinary skill in the art to have widely conventionally used flavoring agents such as salt and pepper for their art recognized flavoring.
Peas and Crayons NPL (2014) teaches of other vegetable-based burgers that have a Mexican flavoring and teaches adding refried beans and minced garlic to make Mexican veggie burgers, along with other flavorings (Pages 1-6).
Linford et al. teaches of vegetarian burger patties that are flame-grilled and teaches of suitable flavoring components include dried onion and garlic, along with other components (Paragraphs 2, 23).
Lastly, Balakrishnan et al. teaches of meat alternative compositions that can be formed into a burger or ground beef, etc. (Paragraph 12) and teaches a meat alternative composition including vegetable stock as the liquid, along with vegetable protein, salt, garlic powder, black pepper, etc. where the meat alternative resembles ground meat (Paragraph 79).
Therefore, it is submitted that 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 above taught ingredients in order to prepare vegetable-based burgers that have various desirable flavor profiles. While the prior art does not specifically teach the amount of the claimed ingredients in the meatless food product, it is submitted that it would have been well within the skill of one of ordinary skill in the art to have optimized amounts of different components through routine experimentation in order to arrive at a meatless food product that has a desirable flavor profile while also resembling a ground meat burger product, in order to provide an alternative burger option to consumers.
In addition, attention is invited to In re Levin, 84 USPQ 232 and the cases cited therein, which are considered in point in fact situation of the instant case. At page 234, the Court stated as follows:
This court has taken the position that new recipes or formulas for cooking food which involve the addition or elimination of common ingredients, or for treating them in ways which differ from the former practice, do not amount to invention, merely because it is not disclosed that, in the constantly developing art of preparing food, no one else ever did the particular thing upon which the applicant asserts his right to a patent. In all such cases, there is nothing patentable unless the applicant by a proper showing further establishes a coaction or cooperative relationship between the selected ingredients which produces a new, unexpected and useful function. In re Benjamin D. White, 17 C.C.P.A. (Patents) 956, 39 F.2d 974, 5 USPQ 267; In re Mason et al., 33 C.C.P.A. (Patents) 1144, 156 F.2d 189, 70 USPQ 221.
In the instant case, since the cited prior art teaches the claimed components in vegetable meat-alternative burgers, it would have been obvious to one of ordinary skill in the art to optimize the concentrations of the different components in order to maximize the functional and sensorial contributions of each of the components, depending on the desired food product formulation. Such an optimization would be the result of routine experimentation for one of ordinary skill in the art, absent any evidence to the contrary.
Regarding Claims 2, 3, and 7 Ajami in view of Oatman, Peas and Crayons NPL, Linford, and Balakrishnan teach the meat being a substitute for taco meat and ground meat-like food products (Ajami, Abstract and Paragraph 104) and being adaptable for individuals to consuming a plant-based dietary food in light of Ajami et al. teaching the meatless food product is plant-based, as set forth above in the rejection of Claim 1 and does not contain meat.
Regarding Claims 4-6, Ajami in view of Oatman, Peas and Crayons NPL, Linford, and Balakrishnan teach the meat-like food products comprise about one or more meat structured protein products bound together by one or more binding agents so as to produce food products that have one or more similar or superior attributes to animal meat, it can resemble ground animal meat, can be made into a burger patty , meat-loafs, meatballs, etc. (Paragraph 100). Ajami in view of Oatman, Peas and Crayons NPL, Linford, and Balakrishnan teach the meat-like food products may have any shape and form, can have the shape of crumbles, or be made into the shape of balls with diameters between about 20 and about 60 mm, or have the shape of patties that are circular and have diameters between about 80 and 100 mm (Ajami, Paragraph 102), wherein the disclosed range encompasses the claimed range of approximately 3-4 inches (76-101 mm) for the patties and is close to the claimed range for spheres approximately 3-4 inches in diameter or approximately 76-101 mm, as “about 60mm” provides for values that are above and below the disclosed range.
It is also submitted that the particular shape would appear to constitute a design choice that would have been within the purview of one of ordinary skill in the art at the time that the invention was made, absent persuasive evidence that a particular configuration was significant, in light of the above teachings of the prior art, and in light of the fact that the particular shape would not appear to materially affect the function of the component. See MPEP 2144.04 IVB.
Furthermore, it has been found that, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device. See MPEP 2144.04 IV A.
Therefore, it would have been obvious to one of ordinary skill in the art to have optimized the size of the spheres or patties of the meat-like food product depending on its end user application.
Regarding Claim 8, Ajami in view of Oatman, Peas and Crayons NPL, Linford, and Balakrishnan teach and render obvious the claimed composition of the meatless food product, and teach or render obvious cooking barley as Oatman teaches using cooked barley in the vegetable burger, therefore rendering obvious to one of ordinary skill in the art cooking it to a sufficient level. The other claimed components are either taught or rendered obvious by the cited prior art, as set forth in the rejection of Claim 1. Ajami in view of Oatman, Peas and Crayons NPL, Linford, and Balakrishnan teach a method for producing the meat-like product comprise the step of combining the ingredients together (Ajami, Paragraphs 238-239) and teaches methods of forming a mixture of a vegetable based ingredients into burger patties and cooking on a griddle at 350̊F for 3.5 minutes per side or 3-4 minutes, flipping once and cooking for an additional 3 minutes (Ajami, Paragraphs 299 and 320-323). The limitation of forming into “puck” shaped burger patties is seen to be met by Ajami teaching a product mixture was formed into burger patties having a particular diameter (Ajami, Paragraph 322). Therefore, the claimed method would have been obvious to one of ordinary skill in the art, in light of the teachings of the prior art.
Regarding Claim 9, as set forth above, Ajami in view of Oatman, Peas and Crayons NPL, Linford, and Balakrishnan teaches cooking the burger patties on a griddle at 350̊F for 3.5 minutes per side, where a temperature of 350̊F is seen to meet the limitation of “medium heat”. Ajami in view of Oatman, Peas and Crayons NPL, Linford, and Balakrishnan teaches that “cooking” includes various cooking methods including grilling (Ajami, Paragraph 104). While the specific time frame of grilling per side is not specifically taught, it is submitted that finding an optimal cooking side on each side of the burger patty would have been well within the skill of one of ordinary skill in the cooking or grilling art, in order to provide a cooked meat-like burger patty having the desirable degree of cooking/doneness. In addition, where general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges in the specific grilling time per side of the burger patty involves only routine skill in the art. MPEP 2144.05 II.
Regarding Claim 10, Ajami in view of Oatman, Peas and Crayons NPL, Linford, and Balakrishnan teaches cooking the burger patties on a griddle at 350̊F for 3.5 or 3-4 minutes per side, where a temperature of 350F is seen to meet the limitation of “medium high heat”. Ajami in view of Oatman, Peas and Crayons NPL, Linford, and Balakrishnan teaches that “cooking” includes various cooking methods including deep-frying (Ajami, Paragraph 104). In addition, Oatman teaches that in a large oven-safe skillet, heat the remaining oil on medium-high heat and add the patties and cook until browned on each side, 6-10 minutes total (Oatman, Page 3). Therefore, it would have been obvious to one of ordinary skill in the art to have determined the optimal cooking time and procedure in light of teachings of the prior art, in order to provide a cooked meat-like burger patty having the desirable degree of cooking/doneness. In addition, where general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges in the specific cooking time per side of the burger patty involves only routine skill in the art. MPEP 2144.05 II.
Regarding Claim 11, Ajami in view of Oatman, Peas and Crayons NPL, Linford, and Balakrishnan teaches that “cooking” includes various cooking methods including heating in a forced-air system, roasting, baking, etc. (Ajami, Paragraph 104). In addition, Oatman teaches preheating the oven to 375 and transferring the pan that had the patties to the oven and bake for 12-15 minutes, until the burgers are firm and cooked through (Oatman, Page 3). Therefore, it would have been obvious to one of ordinary skill in the art to have determined the optimal cooking time and procedure in light of teachings of the prior art, in order to provide a cooked meat-like burger patty having the desirable degree of cooking/doneness. In addition, where general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges in the specific grilling time per side of the burger patty involves only routine skill in the art. MPEP 2144.05 II.
Conclusion
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JENNA A. WATTS
Primary Examiner
Art Unit 1791
/JENNA A WATTS/Primary Examiner, Art Unit 1791 2/10/2026