DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
This Office Action is in response to the paper filed 13 April 2026. Claims 1-3, 6-8, 11, 19-21, 23-25, and 27-29 have been amended. Claims 24-29 remain withdrawn. Claims 1-21 and 23 are currently pending and under examination.
This application is a continuation of U.S. Patent Application 18/478562, filed 29 September 2023, which is a continuation of U.S. Patent Application 18/349687, filed 10 July 2023, which is a continuation of U.S. Patent Application 17/946772, filed 16 September 2022, now U.S. Patent 11,723,392, which is continuation of U.S. Patent Application 17/694604, filed 14 March 2022, now U.S. Patent 11,478,007, which is a continuation of U.S. Patent Application 17/323918, filed 18 May 2021, now U.S. Patent 11,272,726, which is a divisional of U.S. Patent Application 16/842738, filed 7 April 2020, now U.S. Patent 11,039,635, which is a continuation of U.S. Patent Application 16/803667, filed 27 February 2020, now U.S. Patent 11,432,575, which claims the benefit of priority to U.S. Provisional Patent Application No. 62/811421, filed 27 February 2019.
Withdrawal of Rejections:
The rejection of claims 1, 8-15, 17-21, and 23 under 35 U.S.C. 102(a)(1) as being anticipated by Eat the Vegan Rainbow, is withdrawn.
The rejection of claims 1, 8-18, 21, and 23 under 35 U.S.C. 102(a)(1) as being anticipated by Exceedingly Vegan, is withdrawn.
The rejection of claims 1-7 under 35 U.S.C. 103 as being unpatentable over Eat the Vegan Rainbow, is withdrawn.
The rejection of claims 1-7 under 35 U.S.C. 103 as being unpatentable over Exceedingly Vegan, is withdrawn.
New Rejections Necessitated by Amendment:
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 1-21 and 23 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 1 recites the limitation "the filamentous fungal biomass" in line 7. There is insufficient antecedent basis for this limitation in the claim.
Claim 18 recites the limitation "the filamentous fungal biomass" in line 1-2. There is insufficient antecedent basis for this limitation in the claim.
Claims 2-17, 19-21, and 23 are included in this rejection, as these claims depend from above rejected claims and fails to remedy the noted deficiencies.
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.
Claims 1-21 and 23 are rejected under 35 U.S.C. 103 as being unpatentable over Huggins et al. (US 2019/0373935; Published Dec. 12, 2019, priority to June 7, 2018 – Previously Presented).
With regard to claims 1, 9, and 10, Huggins et al. teach a food product comprising a filamentous fungal mycelium that is separated from its growth feedstock, and thus is free of growth feedstock (Abs.; Fig. 1; Para. 22). As the filamentous fungal mycelium is heated, including by steaming (Para. 76), which are preferred methods of inactivating the biomass (see instant claim 9), the viability of the filamentous fungal mycelium has been inactivated. As it is expressly taught that the mycelium may be heated, it would have been obvious to one of ordinary skill in the art to heat the mycelium as taught by Huggins et al. The food product further comprises: pea protein or chicken substitute, which is a non-fungal protein component; potato starch or potato, which is a vegetable; canola oil, which is an oil; and flax meal, which is a binder (Para. 80, 99). As no animal-derived meat or animal-derived components may be present in this food product (see Para. 80, 99), the food product is vegetarian and vegan.
The protein content of the filamentous fungal mycelium includes from 50-65%, and includes 50 wt%, 60 wt%, 70 wt%, 80 wt%, or 90 wt% (Para. 25, 33), which are fully encompassed within at least 46 wt%. Further, Huggins et al. teach that the filamentous fungal mycelium is from Neurospora crassa (Para. 22, 35), which is a preferred filamentous fungal mycelium (see instant claim 11). As Neurospora crassa is a species specifically taught for use in the food product by Applicant, and as Neurospora crassa cannot be separated from its inherent properties, filamentous fungal mycelium derived from Neurospora crassa necessarily has a fiber content of least 23 wt%, and a protein content of at least 46%.
With regard to claims 2, 6, and 7, Huggins et al. teach that the filamentous fungal mycelium is in powder (flour) form, and has a particle size including 50µm, 100µm, 120µm, 135µm, or 149µm (Para. 73), which are fully encompassed within a particle size between 0.03 mm and 0.4 mm, about 0.03 mm and about 0.4 mm, and about 75 to about 120 microns.
With regard to claims 3 and 5, Huggins et al. teach that the filamentous fungal mycelium has a particle size including 50µm, 100µm, 120µm, 135µm, or 149µm (Para. 73). While the specific length, width, and height are not taught, it would have been obvious to one of ordinary skill in the art that each of the length, width, and/or height of the particles would have a size including 50µm, 100µm, 120µm, 135µm, or 149µm. Which are fully encompassed within an average particle length of 0.05 mm to 500 mm, an average particle width of 0.03 mm to 7 mm, and an average particle height of 0.03 to 1.0 mm; and an average particle length less than about 1.5 mm, an average particle width less than about 1 mm, and an average particle height less than about 0.75 mm.
With regard to claim 4, Huggins et al. teach that the filamentous fungal mycelium has a particle size including 50µm, 100µm, 120µm, 135µm, or 149µm (Para. 73). While the specific length, width, and height are not taught, it would have been obvious to one of ordinary skill in the art that each of the length, width, and/or height of the particles would have a size including 50µm, 100µm, 120µm, 135µm, or 149µm. It is noted that Applicant has not provided a specific definition for the term “about.” As such, a length, width, and/or height of the particles that includes 50µm, 100µm, 120µm, 135µm, or 149µm are deemed to be encompassed within an average particle length of about 4 mm to about 10 mm, an average particle width of about 1 mm to about 3 mm, and an average particle height of less than about 0.75 mm. Alternatively, it would have been routine for an ordinary artisan to determine the appropriate length, width, and/or height to make the filamentous fungal biomass particles based on the desired characteristics of the end food product being produced.
With regard to claim 8, Huggins et al. teach that the food product can include fungal mycelium present at 10 wt%, 25 wt%, or 50 wt% (Para. 84), which are fully encompassed within an amount of about 10 wt% to about 50 wt% of the food product.
With regard to claim 11, Huggins et al. teach that the filamentous fungal mycelium is from Neurospora crassa (Para. 22, 35).
With regard to claims 12 and 13, Huggins et al. teach that the food product comprises a non-fungal protein component, including vegetable protein, egg white protein, and potato protein (Para. 99, 110). As vegetable protein is taught, it would have been obvious to one of ordinary skill in the art that vegetable protein encompasses known vegetable proteins, including textured vegetable protein.
With regard to claim 14, Huggins et al. teach that the food product includes flax meal, which is ground flax seed (Para. 80), pectin, carrageenan, and agar (Para. 99), which are binders.
With regard to claim 15, Huggins et al. teach that the food product includes potato starch or potato, onion powder, and/or garlic powder (Para. 80, 96, 99).
With regard to claim 16, Huggins et al. teach that the food product includes an oil, such as a plant-based oil (Para. 68, 80), where sunflower oil can be brushed onto the biomass (Para. 65). As such, it would have been obvious to one of ordinary skill in the art that the oil utilized in the food product can include sunflower oil.
With regard to claim 17, Huggins et al. teach that the food product further includes flavors, spices, flavor enhancers, fats, pH control agents, stabilizers, thickeners, and emulsifiers (Para. 68-69).
With regard to claim 18, Huggins et al. teach that the food product is an edible meat substitute that includes the fungal mycelium present in an amount including 50 wt% (Para. 95), wherein the protein content of the filamentous fungal mycelium is 50 wt%, 60 wt%, 70 wt%, 80 wt%, or 90 wt% (Para. 25, 33). Thus, the fungal mycelium is the source for at least about 25 wt% of protein in the food product.
With regard to claim 19, Huggins et al. teach that the food product includes 30% other components, with the rest being the fungal mycelium (70%) (Para. 80), which is fully encompassed within a ratio of fungal mycelium to the remaining components in the food product of 10:90 to 90:10.
With regard to claim 20, Huggins et al. teach that the food product can include fungal mycelium present at 10 wt%, 25 wt%, or 50 wt% (Para. 84), which are fully encompassed within a ratio of fungal mycelium to the remaining components in the food product of 10:90 to 50:50.
With regard to claim 21, Huggins et al. teach that the filamentous fungal mycelium is from Neurospora crassa (Para. 22, 35), which is a preferred filamentous fungal mycelium (see instant claim 11). As Neurospora crassa is a species specifically taught for use in the food product by Applicant, and as Neurospora crassa cannot be separated from its inherent properties, filamentous fungal mycelium derived from Neurospora crassa necessarily comprises all essential amino acids.
With regard to claims 23, Huggins et al. teach that the filamentous fungal mycelium is from Neurospora crassa (Para. 22, 35), which is a preferred filamentous fungal mycelium (see instant claim 11). As Neurospora crassa is a species specifically taught for use in the food product by Applicant, and as Neurospora crassa cannot be separated from its inherent properties, filamentous fungal mycelium derived from Neurospora crassa necessarily comprises a lipid content of about 6 wt% to 11 wt%.
Response to Arguments
In view of Applicant’s amendments, all previous rejections have been withdrawn. Therefore, Applicant’s arguments are moot. However, new rejections have been set forth above.
Conclusion
No claims are allowable.
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 JENNIFER M.H. TICHY whose telephone number is (571)272-3274. The examiner can normally be reached Monday-Thursday, 9:00am-7:00pm ET.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Sharmila G. Landau can be reached at (571)272-0614. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JENNIFER M.H. TICHY/Primary Examiner, Art Unit 1653
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