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 16 June 2026. Claims 1-12, 14, and 23 have been amended. Claims 25 and 26 are newly added. Claims 14-24 remain withdrawn, and new claim 26 is withdrawn as it depends upon withdrawn claim 14. Claims 1-13 and 25 are currently pending and under examination.
This application is a continuation of U.S. Patent Application No. 18/534119, which is a continuation of U.S. Patent Application No. 18/364676, filed 3 August 2023, which is a continuation of U.S. Patent Application No. 17/946772, filed 16 September 2022, now U.S. Patent 11,723,392, which is continuation of U.S. Patent Application No. 17/694604, filed 14 March 2022, now U.S. Patent 11,478,007, which is a continuation of U.S. Patent Application No. 17/323918, filed 18 May 2021, now U.S. Patent 11,272,726, which is a divisional of U.S. Patent Application No. 16/842738, filed 7 April 2020, now U.S. Patent 11,039,635, which is a continuation of U.S. Patent Application No. 16/803667, filed 27 February 2020, now U.S. Patent 11,432,575, which claims benefit of priority to U.S. Provisional Patent Application No. 62/811421, filed 27 February 2019.
Terminal Disclaimer
The terminal disclaimer filed on 16 June 2026 disclaiming the terminal portion of any patent granted on this application which would extend beyond the expiration date of U.S. Patent Nos. 11,723,392; 12,035,736; 12,612,593; and 12,624,334, and any U.S. Patent granted on Applicant No. 18/534119, has been reviewed and is accepted. The terminal disclaimer has been recorded.
Withdrawal of Rejections:
The rejection of claim 11 under 35 U.S.C. 102(a)(1) as anticipated by or, in the alternative, under 35 U.S.C. 103 as obvious over Finnigan et al., is withdrawn.
The rejection of the claims on the ground of nonstatutory double patenting as being unpatentable over claims of U.S. Patent Nos. 11,723,392, 11,666,080, and 12,035,736; and copending Application Nos. 18/534119, 18/123744, 18/446936, and 18/349687, is withdrawn.
Maintenance/Modification and New Rejections Necessitated by Amendment:
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 1-3, 6, 7, 10, 12, 13, and 25 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Finnigan et al. (US 2010/0213293; Published 2010), as evidenced by De Haan et al. (WO 2000/015045; Published 2000).
With regard to claims 1, 2, 10, and 25, Finnigan et al. teach a composition comprising an aqueous formulation of edible fungal particles comprising filamentous fungal mycelia (Abs.; Para. 12), which is mycelial particles dispersed in an aqueous medium. As the composition includes embodiments that do not require any animal-derived products, such as providing the fungal mycelia in water (Para. 120; Table. 3a), the liquid dispersion is vegan. The edible fungus comprises fungal cells of the order Mucorales as described in WO 00/15045 (De Haan) (Para. 10), including Rhizopus oligosporus (see De Haan, p. 4, line 13-17).
Rhizopus oligosporus is taught by Applicant as a filamentous fungus usable in the composition (see claim 10). As the Rhizopus oligosporus cannot be separated from its properties, the fungal particles of Rhizopus oligosporus necessarily comprise greater than 40 wt% protein. The composition includes about 5 wt% solids (Para. 136), which is fully encompassed within about 4 wt% and about 30 wt%. The mycoprotein paste, which includes the fungal mycelia of the composition, is heat treated to render RNA non-viable (Para. 93), wherein heat treatment to render RNA non-viable is a treatment that eliminates cell viability.
Finnigan et al. teach a composition comprising a liquid dispersion of particles of mycelia as claimed, including all components as claimed. As the composition cannot be separated from its inherent properties, the composition as taught by Finnigan et al. is necessarily stable for at least about 1 day and at least about 30 days.
With regard to claim 3, Finnigan et al. teach a composition comprising a liquid dispersion of particles of fungal mycelia as claimed, including all components as claimed. As the composition cannot be separated from its inherent properties, the composition as taught by Finnigan et al. necessarily has a viscosity between about 0.1 Pa.s and about 5 Pa.s.
With regard to claim 6, Finnigan et al. teach that the composition may be a non-dairy milk product (Para. 66), which is a milk analog.
With regard to claim 7, Finnigan et al. teach that the composition is an ice-cream type dessert that is prepared by whipping the components together (Para. 65), wherein the whipped composition is deemed to be a “foam.”
With regard to claims 12 and 13, Finnigan et al. teach that foodstuffs, including yoghurt, ice-cream, drinks, soup, and milk, comprise the composition (Para. 64-66).
Claim Rejections - 35 USC § 102/103
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.
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, 4, 5, 8, and 9 are rejected under 35 U.S.C. 102(a)(1) as anticipated by or, in the alternative, under 35 U.S.C. 103 as obvious over Finnigan et al.
The teachings of Finnigan et al. as applied to claim 1 have been set forth above.
Claims 4, 5, 8, and 9 are directed to the liquid dispersion of particles of a filamentous fungus, which is produced by the claimed process. "[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process." In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985).
Here, Finnigan et al. likewise provides a liquid dispersion of particles of filamentous fungi (Abs.). The liquid dispersion of particles of filamentous fungi is used for the same purpose as claimed: as a component in a composition, including specifically an edible food product (Abs.). Functionally, the liquid dispersion of particles of filamentous fungi of Finnigan et al. is the same as the claimed liquid dispersion of particles of filamentous fungi. Therefore, the liquid dispersion of particles of filamentous fungi of Finnigan et al. is the same as, or would have rendered obvious, the liquid dispersion of particles of filamentous fungi produced by the claimed process, including subjecting the liquid dispersion to shear to provide a viscosity after being subjected to shear that is lower than before, removing a portion of liquid from the liquid dispersion, which is concentrating the liquid dispersion; and deriving the particles from a filamentous fungal biomat, wherein the biomat is produced by surface or membrane fermentation.
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"The Patent Office bears a lesser burden of proof in making out a case of prima facie obviousness for product-by-process claims because of their peculiar nature" than when a product is claimed in the conventional fashion. In re Fessmann, 489 F.2d 742, 744, 180 USPQ 324, 326 (CCPA 1974). Once the examiner provides a rationale tending to show that the claimed product appears to be the same or similar to that of the prior art, although produced by a different process, the burden shifts to applicant to come forward with evidence establishing an unobvious difference between the claimed product and the prior art product. In re Marosi, 710 F.2d 798, 802, 218 USPQ 289, 292 (Fed. Cir. 1983).
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 and 11 are rejected under 35 U.S.C. 103 as being unpatentable over Finnigan et al., and further in view of Kozubal et al. (WO 2017/151684; Published 2017).
The teachings of Finnigan et al. as applied to claim 1 have been set forth above.
With regard to claim 11, Finnigan et al. teach a composition comprising an aqueous formulation of edible fungal particles comprising filamentous fungal mycelia (Abs.; Para. 12), which is mycelial particles dispersed in an aqueous medium. The edible fungus comprises fungal cells of the order Mucorales as described in WO 00/15045 (De Haan) (Para. 10), including Rhizopus oligosporus (see De Haan, p. 4, line 13-17). Finnigan et al. further teach that the filamentous fugus includes Fusarium species, including Fusarium venenatum (Para. 12). However, Finnigan et al. do not teach that the Fusarium is specifically Fusarium strain MK7.
Kozubal et al. teach filamentous fugal biomats that are usable as a food stuff or animal feed (Para. 114). The filamentous fungus including Rhizopus oligosporus, Fusarium venenatum, and Fusarium strain MK7 (Para. 84-85; Ex. 17; claims 8-11). The Fusarium strain MK7 is a new strain of acidophilic fungus, which can directly convert carbon sources to filamentous fungi biomats comprising proteins and lipids, and is shown to have a higher concentration of essential amino acids compared to Rhizopus oligosporus and Fusarium venenatum, making MK7 a highly desirable source of protein for food and feeds (Para. 85, 243; Table 8).
It would have been obvious to one of ordinary skill in the art to combine the teachings of Finnigan et al. and Kozubal et al., because both teach filamentous fungal mycelia, including from Rhizopus oligosporus and Fusarium strains, including Fusarium venenatum, in a composition usable as a food or feed. The use of Fusarium strain MK7 mycelia in an edible food or feed composition is known in the art as taught by Kozubal et al. The use of Fusarium strain MK7 as taught by Kozubal et al. in the composition of Finnigan et al. in place of Fusarium venenatum or Rhizopus oligosporus amounts to the simple substitution of one known edible filamentous fugal strain for another, and would have been expected to predictably and successfully provide an alternative species for use in the food product composition. Additionally, the use of Fusarium strain MK7 in place of Fusarium venenatum or Rhizopus oligosporus would have been expected to predictably improve the composition of Finnigan et al., as Fusarium strain MK7 is a new strain of acidophilic fungus, which can directly convert carbon sources to filamentous fungi biomats comprising proteins and lipids, and is shown to have a higher concentration of essential amino acids compared to Rhizopus oligosporus and Fusarium venenatum, making MK7 a highly desirable source of protein for food and feeds.
Response to Arguments
With regard to the anticipation rejection over Finnegan, Applicant urges that the claims as amended overcome this rejection.
Applicant’s arguments have been fully considered, but have not been found persuasive; the amended claims have been addressed in the modified rejection above.
Applicant’s arguments regarding the previous 102/103 rejection of claim 11 are moot, as this rejection has been withdrawn.
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
