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 .
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 16 May 2025 has been entered.
Claims 24-29 remain withdrawn.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.
Maintained/Modified Rejections:
Claim Rejections - 35 USC § 102
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.
Claims 1, 8-15, 17-21, and 23 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Eat the Vegan Rainbow (Broiled Vegan Koftas, March 10, 2018, Available online at: eattheveganrainbow.com/ 2018/03/10/broiled-vegan-koftas/ - Previously Presented).
With regard to claims 1, 9-15, and 23, Eat the Vegan Rainbow teaches broiled vegan koftas, which are a vegan and vegetarian food product, the koftas comprising:
10 oz white button mushrooms (p. 4-5, What you’ll need), which are Agaricus bisporus, which are a filamentous fungal biomass consisting essentially of fungal mycelium that is free of feedstock on which the filamentous fungal biomass was grown, as just edible white button mushrooms are listed as an ingredient. Applicant indicates that the filamentous fungal biomass that consists essentially of fungal mycelium comprises at least one filamentous fungus, including Agaricus bisporus (see claim 11; Specification, para. 10). As such, Agaricus bisporus as taught by Eat the Vegan Rainbow is interpreted to be encompassed by the term “filamentous fungal biomass that consists essentially of fungal mycelium.” Additionally, as the filamentous fungal biomass of Agaricus bisporus cannot be separated from its properties, the filamentous fungal biomass of Agaricus bisporus as taught by Eat the Vegan Rainbow necessarily includes at least 46 wt% protein, at least 23% fiber content, and a lipid content of about 6 wt% to about 11 wt%. Additionally, the filamentous fungal biomass is heated (p. 5, What you’ll do: 5.), wherein heat is a treatment that inactivates the viability of the filamentous fungal biomass (see instant claim 9).
10 oz textured vegetable protein (TVP), which is a non-fungal protein component;
garlic, which is a vegetable;
olive oil, which is an oil; and
gluten-free bread crumbs, which is a vegetarian binder (p. 4, What you’ll need).
With regard to claim 8 Eat the Vegan Rainbow teaches broiled vegan koftas, comprising: 10 oz white button mushrooms, 10 oz TVP, 1 cup bread crumbs, 4 cloves garlic, 3 tbsp olive oil, 2 tsp coriander powder, 2 tsp ground cumin, 2 tsp smoked paprika, 1 tsp crushed red pepper flakes, and cooking spray (p. 4-5, What you’ll need), which is deemed to encompasses filamentous fungal biomass that makes up “about” 10 wt% to “about” 50 wt% of the food product. Additionally, as Applicant has not provided a specific definition for the term “about,” the filamentous fungal biomass makes up “about” 10 wt% to “about” 50 wt% of the food product.
With regard to claim 17, Eat the Vegan Rainbow teaches that the food product further comprises coriander, cumin, paprika, and red pepper flakes (p. 4, What you’ll need), which are flavor/flavor enhancers and spices.
With regard to claim 18, Eat the Vegan Rainbow teaches the composition as claimed, including all components as claimed, including the preferred filamentous fungal biomass of Agaricus bisporus. As the composition and its components cannot be separated from their properties, the filamentous fungal biomass of Agaricus bisporus as taught by Eat the Vegan Rainbow necessarily provides for at least 25 wt% of protein in the food product.
With regard to claims 19 and 20, Eat the Vegan Rainbow teaches broiled vegan koftas, which are a food product, the koftas comprising 10 oz TVP, which is a non-fungal protein component; and 10 oz white button mushrooms (Agaricus bisporus), which is a filamentous fungal biomass (p. 4-5, What you’ll need), which is fully encompassed with a ratio of filamentous fungal biomass to non-fungal protein component of 10:90 to 90:10 and 10:90 to 50:50.
With regard to claim 21, Eat the Vegan Rainbow teaches 10 oz white button mushrooms (p. 4, What you’ll need), which are Agaricus bisporus. Applicant indicates that filamentous fungal species usable for the filamentous fungal biomass in the food product as claimed include Agaricus bisporus (see claim 11). As the filamentous fungal biomass of Agaricus bisporus cannot be separated from its properties, the filamentous fungal biomass of Agaricus bisporus as taught by Eat the Vegan Rainbow necessarily comprises all essential amino acids.
Claims 1, 8-18, 21, and 23 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Exceedingly Vegan (Vegan Sausage on a Roll with Fried onions and Salad, 17 June 2016, Available online at: www.exceedinglyvegan.com/vegan-recipes/mains/vegan-sausage-roll-fried-onions - Previously Presented).
With regard to claims 1, 9-16, and 23, Exceedingly Vegan teaches vegan sausage, which is a vegan and vegetarian food product, the vegan sausage comprising:
4 mini portobello mushrooms (p. 4-5, Ingredients sausage filling), which are Agaricus bisporus, which are a filamentous fungal biomass consisting essentially of fungal mycelium that is free of feedstock on which the filamentous fungal biomass was grown, as just edible portobello mushrooms are listed as an ingredient. Applicant indicates that the filamentous fungal biomass that consists essentially of fungal mycelium comprises at least one filamentous fungus, including Agaricus bisporus (see claim 11; Specification, para. 10). As such, Agaricus bisporus as taught by Exceedingly Vegan is interpreted to be encompassed by the term “filamentous fungal biomass that consists essentially of fungal mycelium.” Additionally, as the filamentous fungal biomass of Agaricus bisporus cannot be separated from its properties, the filamentous fungal biomass of Agaricus bisporus as taught by Exceedingly Vegan necessarily includes at least 46 wt% protein, at least 23% fiber content, and a lipid content of about 6 wt% to about 11 wt%. Additionally, the filamentous fungal biomass is fried, which is heated (p. 5, Method, para. 1-4), wherein heat is a treatment that inactivates the viability of the filamentous fungal biomass (see instant claim 9).
200g textured vegetable protein (TVP) meat free mince, which is a non-fungal protein component;
garlic, which is a vegetable;
sunflower oil, which is an oil; and
breadcrumbs, which is a vegetarian binder (p. 4-5, Ingredients sausage filling).
With regard to claim 8, Exceedingly Vegan teaches sausage filling comprising: sunflower oil, 1 medium onion, 4 mini portobello mushrooms, 200g TVP, ¼ tsp salt, 1 tsp barbecue seasoning, 1 tsp smoked paprika powder, 1 tsp garlic powder/granules, 1 stock cube, ¼ cup hot water, 3 tsp tomato puree, black pepper, and ¼ cup breadcrumbs (p. 4-5, Ingredients sausage filling). As Applicant has not provided a specific definition for the term “about,” the filamentous fungal biomass makes up “about” 10 wt% to “about” 50 wt% of the food product.
With regard to claim 17, Exceedingly Vegan teaches that the food product further comprises salt, barbecue seasoning, smoked paprika powder, and black pepper (p. 4-5, Ingredients sausage filling), which are flavor/flavor enhancers and spices.
With regard to claim 18, Exceedingly Vegan teaches the composition as claimed, including all components as claimed, including the preferred filamentous fungal biomass of Agaricus bisporus. As the composition and its components cannot be separated from their properties, the filamentous fungal biomass of Agaricus bisporus as taught by Exceedingly Vegan necessarily provides for at least 25 wt% of protein in the food product.
With regard to claim 21, Exceedingly Vegan teaches mini portobello mushrooms (p. 4-5, Ingredients sausage filling), which are Agaricus bisporus. Applicant indicates that filamentous fungal species usable for the filamentous fungal biomass in the food product as claimed include Agaricus bisporus (see claim 11). As the filamentous fungal biomass of Agaricus bisporus cannot be separated from its properties, the filamentous fungal biomass of Agaricus bisporus as taught by Exceedingly Vegan necessarily comprises all essential amino acids.
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 1-7 are rejected under 35 U.S.C. 103 as being unpatentable over Eat the Vegan Rainbow (Broiled Vegan Koftas, March 10, 2018, Available online at: eattheveganrainbow.com/ 2018/03/10/broiled-vegan-koftas/ - Previously Presented).
The teachings of Eat the Vegan Rainbow as applied to claim 1 have been set forth above.
With regard to claims 2-7, Eat the Vegan Rainbow teaches that the white button mushrooms are pulsed in a food processor (p. 6, Ingredients, p. 7, Directions, 4.; see also p. 6, picture). While the particle size of filamentous fungal species in the koftas is not specifically taught, it would have been routine for an ordinary artisan to adjust the particle size of the white button mushrooms for mixing with the TVP and remaining ingredients to adjust the taste and texture of the finished koftas as desired.
Additionally, please also note that "the discovery of an optimum value of a variable in a known process is usually obvious." Pfizer v. Apotex, 480 F.3d at 1368. The rationale for determining the optimal parameters for prior art result effective variables "flows from the 'normal desire of scientists or artisans to improve upon what is already generally known.'" Id. (quoting In re Peterson, 315 F.3d 1325, 1330 (Fed. Cir. 2003)). Accordingly, it would have been obvious to optimize the particle size of the white button mushrooms, including having: 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 mm to 1.0 mm; the form of a flour having a particle size of 0.03 mm to about 0.4 mm; 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; 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 0.75 mm; an average particle length of less than 1.5 mm, an average particle width of less than 1 mm, and an average particle height of less than 0.75 mm; an average particle size between about 0.03 mm and about 0.4 mm; or an average particle size of about 75 to about 120 microns, to result in particles of a size appropriate for mixing with the TVP and other ingredients, to adjust taste and texture of the finished koftas as desired.
Claims 1-7 are rejected under 35 U.S.C. 103 as being unpatentable over Exceedingly Vegan (Vegan Sausage on a Roll with Fried onions and Salad, 17 June 2016, Available online at: www.exceedinglyvegan.com/vegan-recipes/mains/vegan-sausage-roll-fried-onions - Previously Presented).
The teachings of Exceedingly Vegan as applied to claim 1 have been set forth above.
With regard to claims 2-7, Exceedingly Vegan teaches that the mini portobello mushrooms are chopped, and also made into a paste in a food processor (p. 5, Method, Para. 1-2). While the particle size of filamentous fungal species in the vegan sausage is not specifically taught, it would have been routine for an ordinary artisan to adjust the particle size of the mini portobello mushrooms for mixing with the TVP and remaining ingredients to adjust the taste and texture of the finished vegan sausage as desired.
Additionally, please also note that "the discovery of an optimum value of a variable in a known process is usually obvious." Pfizer v. Apotex, 480 F.3d at 1368. The rationale for determining the optimal parameters for prior art result effective variables "flows from the 'normal desire of scientists or artisans to improve upon what is already generally known.'" Id. (quoting In re Peterson, 315 F.3d 1325, 1330 (Fed. Cir. 2003)). Accordingly, it would have been obvious to optimize the particle size of the mini portobello mushrooms, including having: 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 mm to 1.0 mm; the form of a flour having a particle size of 0.03 mm to about 0.4 mm; 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; 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 0.75 mm; an average particle length of less than 1.5 mm, an average particle width of less than 1 mm, and an average particle height of less than 0.75 mm; an average particle size between about 0.03 mm and about 0.4 mm; or an average particle size of about 75 to about 120 microns, to result in particles of a size appropriate for mixing with the TVP and other ingredients, to adjust taste and texture of the finished vegan sausage as desired.
Response to Arguments
Applicant urges that Eat the Vegan Rainbow does not anticipate the claimed invention, as the white button mushrooms disclosed by Eat the Vegan Rainbow are fruiting bodies, while Applicant defines “mycelium” as a “complex network of interwoven vegetative hyphae filaments,” referring to the Specification at Para 173.
Likewise, Applicant urges that Exceedingly Vegan does not anticipate the claimed invention, as the mini portobello mushrooms disclosed by Exceedingly Vegan are fruiting bodies, while Applicant defines “mycelium” as a “complex network of interwoven vegetative hyphae filaments,” referring to the Specification at Para 173.
The obviousness rejections over Compost and Cava and Exceedingly Vegan are traversed for the same reasons.
Applicant’s arguments have been fully considered, but have not been found persuasive.
Paragraph 172 of the specification (which corresponds to para. 173 of the published application) recites in lines 1-2: “[172] Typically, the filamentous fungal biomats are primarily comprised of mycelia; that is, a complex network of interwoven vegetative hyphae filaments.” It is noted that this is not a definition that requires the mycelial biomass to be a complex network of interwoven vegetative hyphae filaments. Use of “typically” indicates that this passage refers to an embodiment, and not a definition that is intended to limit the meaning of mycelial biomass. Additionally, it is noted that filamentous fungal biomats are not claimed. While the claims are interpreted in light of the specification, it is not proper to read limitations from the specification into the claims.
As discussed in the rejections above, Applicant indicates that the filamentous fungal biomass that consists essentially of fungal mycelium comprises at least one filamentous fungus, including Agaricus bisporus (see claim 11; Specification, para. 10). As such, Agaricus bisporus as taught by Eat the Vegan Rainbow is interpreted to be encompassed by the term “filamentous fungal biomass that consists essentially of fungal mycelium.” Likewise, Applicant indicates that the filamentous fungal biomass that consists essentially of fungal mycelium comprises at least one filamentous fungus, including Agaricus bisporus (see claim 11; Specification, para. 10). As such, Agaricus bisporus as taught by Exceedingly Vegan is interpreted to be encompassed by the term “filamentous fungal biomass that consists essentially of fungal mycelium.”
With regard to the obviousness rejections over Compost and Cava and Eat the Vegan Rainbow, the noted deficiencies have been addressed above.
Conclusion
No claims are allowable.
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/JENNIFER M.H. TICHY/Primary Examiner, Art Unit 1653