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 .
The two claim sets filed March 6, 2024 are acknowledged. Claims 1-8 and 11-20 are pending in the application. Claims 9 and 10 have been cancelled.
Claim Objections
Applicant is advised that should claim 1 be found allowable, claim 19 will be objected to under 37 CFR 1.75 as being a substantial duplicate thereof. Additionally, should claim 11 be found allowable, claim 20 will be objected to under 37 CFR 1.75 as being a substantial duplicate thereof. Applicant is reminded that when two claims in an application are duplicates or else are so close in content that they both cover the same thing, despite a slight difference in wording, it is proper after allowing one claim to object to the other as being a substantial duplicate of the allowed claim. See MPEP § 608.01(m).
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 1-8 and 11-20 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.
Independent claim 1 recites “meat-like” at lines 1 and 11. It is unclear what is encompassed by this recitation. More specifically, the phrase “meat-like” renders the claim indefinite because the claim includes elements not actually disclosed (those encompassed by “like”), thereby rendering the scope of the claim unascertainable.
For the purpose of the examination, the recitation of “meat-like” at lines 1 and 11 of claim 1 (emphasis added) is interpreted as “meat substitute” (emphasis added).
Claims 2 and 3 recite “meat-like” at line 1. It is unclear what is encompassed by this recitation. More specifically, the phrase “meat-like” renders the claims indefinite because the claims include elements not actually disclosed (those encompassed by “like”), thereby rendering the scope of the claims unascertainable.
For the purpose of the examination, the recitation of “meat-like” at line 1 of claims 2 and 3 (emphasis added) is interpreted as “meat substitute” (emphasis added).
Claim 4 recites “meat-like” at line 1. It is unclear what is encompassed by this recitation. More specifically, the phrase “meat-like” renders the claim indefinite because the claim includes elements not actually disclosed (those encompassed by “like”), thereby rendering the scope of the claim unascertainable.
For the purpose of the examination, the recitation of “meat-like” at line 1 of claim 4 (emphasis added) is interpreted as “meat substitute” (emphasis added).
Claim 4 also recites “wherein a water absorption amount of the water-swellable dietary fiber is 3 times or more, that is, 3 mL or more per 1 g of the water-swellable dietary fiber” at lines 1-3. It is unclear what is intended by this recitation. It is unclear how the water absorption amount is measured, and no units have been provided for the value of 3 times or more. Additionally, the phrase "that is" renders the claim indefinite because it is unclear whether the recitation following the phrase is part of the claimed invention. Therefore, the scope of the claim is indefinite.
For the purpose of the examination, the recitation of “wherein a water absorption amount of the water-swellable dietary fiber is 3 times or more, that is, 3 mL or more per 1 g of the water-swellable dietary fiber” at lines 1-3 of claim 4 (emphasis added) is interpreted as “wherein a water absorption amount of the water-swellable dietary fiber is 3 mL or more per 1 g of the water-swellable dietary fiber.”
Claim 5 recites “meat-like” at line 1. It is unclear what is encompassed by this recitation. More specifically, the phrase “meat-like” renders the claim indefinite because the claim includes elements not actually disclosed (those encompassed by “like”), thereby rendering the scope of the claim unascertainable.
For the purpose of the examination, the recitation of “meat-like” at line 1 of claim 5 (emphasis added) is interpreted as “meat substitute” (emphasis added).
Claims 6, 7, and 8 recite “meat-like” at line 1. It is unclear what is encompassed by this recitation. More specifically, the phrase “meat-like” renders the claims indefinite because the claims include elements not actually disclosed (those encompassed by “like”), thereby rendering the scope of the claims unascertainable.
For the purpose of the examination, the recitation of “meat-like” at line 1 of claims 6, 7, and 8 (emphasis added) is interpreted as “meat substitute” (emphasis added).
Claims 6, 7, and 8 also recite “wherein a water absorption amount of the water-swellable dietary fiber is 3 times or more, that is, 3 mL or more per 1 g of the water-swellable dietary fiber” at lines 1-3. It is unclear what is intended by this recitation. It is unclear how the water absorption amount is measured, and no units have been provided for the value of 3 times or more. Additionally, the phrase "that is" renders the claims indefinite because it is unclear whether the recitation following the phrase is part of the claimed invention. Therefore, the scope of the claims is indefinite.
For the purpose of the examination, the recitation of “wherein a water absorption amount of the water-swellable dietary fiber is 3 times or more, that is, 3 mL or more per 1 g of the water-swellable dietary fiber” at lines 1-3 of claims 6, 7, and 8 (emphasis added) is interpreted as “wherein a water absorption amount of the water-swellable dietary fiber is 3 mL or more per 1 g of the water-swellable dietary fiber.”
Independent claim 11 recites “meat-like” at lines 1, 11, and 12. It is unclear what is encompassed by this recitation. More specifically, the phrase “meat-like” renders the claim indefinite because the claim includes elements not actually disclosed (those encompassed by “like”), thereby rendering the scope of the claim unascertainable.
For the purpose of the examination, the recitation of “meat-like” at lines 1, 11, and 12 of claim 11 (emphasis added) is interpreted as “meat substitute” (emphasis added).
Claims 12 and 13 recites “meat-like” at lines 1 and 3. It is unclear what is encompassed by this recitation. More specifically, the phrase “meat-like” renders the claims indefinite because the claims include elements not actually disclosed (those encompassed by “like”), thereby rendering the scope of the claims unascertainable.
For the purpose of the examination, the recitation of “meat-like” at lines 1 and 3 of claims 12 and 13 (emphasis added) is interpreted as “meat substitute” (emphasis added).
Claim 14 recites “meat-like” at lines 1 and 3. It is unclear what is encompassed by this recitation. More specifically, the phrase “meat-like” renders the claim indefinite because the claim includes elements not actually disclosed (those encompassed by “like”), thereby rendering the scope of the claim unascertainable.
For the purpose of the examination, the recitation of “meat-like” at lines 1 and 3 of claim 14 (emphasis added) is interpreted as “meat substitute” (emphasis added).
Claim 14 also recites “wherein a water absorption amount of the water-swellable dietary fiber is 3 times or more, that is, 3 mL or more per 1 g of the water-swellable dietary fiber” at lines 1-3. It is unclear what is intended by this recitation. It is unclear how the water absorption amount is measured, and no units have been provided for the value of 3 times or more. Additionally, the phrase "that is" renders the claim indefinite because it is unclear whether the recitation following the phrase is part of the claimed invention. Therefore, the scope of the claim is indefinite.
For the purpose of the examination, the recitation of “wherein a water absorption amount of the water-swellable dietary fiber is 3 times or more, that is, 3 mL or more per 1 g of the water-swellable dietary fiber” at lines 1-3 of claim 14 (emphasis added) is interpreted as “wherein a water absorption amount of the water-swellable dietary fiber is 3 mL or more per 1 g of the water-swellable dietary fiber.”
Claim 15 recites “meat-like” at lines 1 and 3. It is unclear what is encompassed by this recitation. More specifically, the phrase “meat-like” renders the claim indefinite because the claim includes elements not actually disclosed (those encompassed by “like”), thereby rendering the scope of the claim unascertainable.
For the purpose of the examination, the recitation of “meat-like” at lines 1 and 3 of claim 15 (emphasis added) is interpreted as “meat substitute” (emphasis added).
Claims 16, 17, and 18 recite “meat-like” at lines 1 and 3. It is unclear what is encompassed by this recitation. More specifically, the phrase “meat-like” renders the claims indefinite because the claims include elements not actually disclosed (those encompassed by “like”), thereby rendering the scope of the claims unascertainable.
For the purpose of the examination, the recitation of “meat-like” at lines 1 and 3 of claims 16, 17, and 18 (emphasis added) is interpreted as “meat substitute” (emphasis added).
Claims 16, 17, and 18 also recite “wherein a water absorption amount of the water-swellable dietary fiber is 3 times or more, that is, 3 mL or more per 1 g of the water-swellable dietary fiber” at lines 1-3. It is unclear what is intended by this recitation. It is unclear how the water absorption amount is measured, and no units have been provided for the value of 3 times or more. Additionally, the phrase "that is" renders the claims indefinite because it is unclear whether the recitation following the phrase is part of the claimed invention. Therefore, the scope of the claims is indefinite.
For the purpose of the examination, the recitation of “wherein a water absorption amount of the water-swellable dietary fiber is 3 times or more, that is, 3 mL or more per 1 g of the water-swellable dietary fiber” at lines 1-3 of claims 16, 17, and 18 (emphasis added) is interpreted as “wherein a water absorption amount of the water-swellable dietary fiber is 3 mL or more per 1 g of the water-swellable dietary fiber.”
Independent claim 19 recites “meat-like” at lines 1 and 12. It is unclear what is encompassed by this recitation. More specifically, the phrase “meat-like” renders the claim indefinite because the claim includes elements not actually disclosed (those encompassed by “like”), thereby rendering the scope of the claim unascertainable.
For the purpose of the examination, the recitation of “meat-like” at lines 1 and 12 of claim 19 (emphasis added) is interpreted as “meat substitute” (emphasis added).
Independent claim 20 recites “meat-like” at lines 1, 12, and 13. It is unclear what is encompassed by this recitation. More specifically, the phrase “meat-like” renders the claim indefinite because the claim includes elements not actually disclosed (those encompassed by “like”), thereby rendering the scope of the claim unascertainable.
For the purpose of the examination, the recitation of “meat-like” at lines 1, 12, and 13 of claim 20 (emphasis added) is interpreted as “meat substitute” (emphasis added).
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-8 and 11-20 are rejected under 35 U.S.C. 103 as being unpatentable over Sellgson et al. EP 0271963 (hereinafter “Sellgson”).
Regarding the claim language of “for producing a meat substitute processed food” in the preamble of claims 1-8 and 11-18, it is noted that this recitation is a statement of intended use or field of use. If the body of a claim fully and intrinsically sets forth all of the limitations of the claimed invention, and the preamble merely states the purpose or intended use of the invention, then the preamble is not considered a limitation and is of no significance to the claim construction. See MPEP 2111.02.
With respect to claim 1, Sellgson relates to process of making meat analogs (P3, L43-45).
Regarding the claim language of (a) dispersing methylcellulose in an oil and/or fat to obtain a methylcellulose dispersion; (b) swelling and dispersing a water-swellable dietary fiber in water to obtain a water- swellable dietary fiber dispersion; (c) mixing the methylcellulose dispersion and the water-swellable dietary fiber dispersion to prepare an oil-in-water emulsion; (d) mixing a textured plant protein material with the oil-in-water emulsion to prepare a dough; and (e) molding the dough prepared in (d), and then heating the molded dough to produce a meat substitute processed food in claim 1, Sellgson teaches the meat analog is prepared by providing a texturized vegetable protein material. Suitable materials, such as methylcellulose, dietary fiber resistant to digestion found in plant cell walls (swellable dietary fiber), water, and fat/oil, may be included as well. In one embodiment, some of the ingredients, such as fiber and the texturized vegetable protein, are hydrated in water, the remaining ingredients including fat are added to the hydrated ingredients and mixed to form a dough, and the dough is molded and heated to form the meat analog (P3, L19-20 and 43-45; P8, L56-P9, L1; P9, L8-13, 32-34, 36-37, and 48; P11, L46; P12, L23-25 and 28-30; and P14, Example 1).
Sellgson does not expressly disclose the methylcellulose is dispersed in the oil and/or fat, mixing the methylcellulose dispersion with the fiber dispersion to form an emulsion, or mixing the texturized vegetable protein with the emulsion. However, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to change the sequence of adding ingredients in the method of Sellgson through routine experimentation with the expectation of successfully preparing a functional meat analog product. One of ordinary skill in the art would have been motivated to do so because Sellgson teaches of substantially the same meat analog product produced by substantially the same method as instantly claimed, the order in which the ingredients are added in the method is not seen as critical, and it is understood that to switch the order of performing process steps, i.e. the order of the addition of the ingredients into the final mixture, would be obvious absent any clear and convincing evidence and/or arguments to the contrary (MPEP 2144.04). There would have been a reasonable expectation of success. “Selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results.” In re Burhans, 154 F.2d 690, 69 USPQ 330 (CCPA 1946).
With respect to claim 2, Sellgson is relied upon for the teaching of the method of claim 1 as addressed above.
Regarding the recitation of wherein the dough comprises an oil-in-water emulsion gel comprising methylcellulose in claim 2, it is noted that this recitation relates to the resulting effect of practicing the claimed method. Applicant is reminded that language that suggests or makes a feature or step optional but does not require that feature or step does not limit the scope of a claim under the broadest reasonable claim interpretation. The following types of claim language may raise a question as to its limiting effect: (A) statements of intended use or field of use, including statements of purpose or intended use in the preamble, (B) "adapted to" or "adapted for" clauses, (C) "wherein" or "whereby" clauses, (D) contingent limitations, (E) printed matter, or (F) terms with associated functional language. See MPEP 2103 and 2111.04. Additionally, the court noted that a "‘whereby clause in a method claim is not given weight when it simply expresses the intended result of a process step positively recited.’" Id. (quoting Minton v. Nat’l Ass’n of Securities Dealers, Inc., 336 F.3d 1373, 1381, 67 USPQ2d 1614, 1620 (Fed. Cir. 2003)) and MPEP 2111.04.
Absent any clear and convincing evidence to the contrary, the method would naturally arrive at the claimed gel comprising methylcellulose since Sellgson teaches the claimed ingredients as well as a method that is substantially similar to the presently claimed method as addressed above in claim 1, and Sellgson teaches the product resembles meat in texture and eating quality (P9, L40 and 47-48).
With respect to claim 3, Sellgson is relied upon for the teaching of the method of claim 1 as addressed above.
Regarding the recitation of wherein the amount of the water-swellable dietary fiber in the dough is 0.05 to 5 wt.% in claim 3, Sellgson does not expressly disclose the quantity of dietary fiber resistant to digestion found in plant cell walls (swellable dietary fiber). However, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to adjust the quantity of dietary fiber in Sellgson through routine experimentation with the expectation of successfully preparing an organoleptically desirable meat analog product. One of ordinary skill in the art would have been motivated to do so because Sellgson teaches additives, such as dietary fiber resistant to digestion found in plant cell walls (swellable dietary fiber), provides the product with enhanced palatability and biological effectiveness (P9, L11-12 and 48; P12, L28-30), and it is understood that, generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. There would have been a reasonable expectation of success. “[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.” In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP 2144.05 II).
With respect to claim 4, Sellgson is relied upon for the teaching of the method of claim 1 as addressed above.
Regarding the claim language of wherein a water absorption amount of the water-swellable dietary fiber is 3 mL or more per 1 g of the water-swellable dietary fiber in claim 4, it is noted that this recitation relates to the resulting effect of practicing the claimed method. Applicant is reminded that language that suggests or makes a feature or step optional but does not require that feature or step does not limit the scope of a claim under the broadest reasonable claim interpretation. The following types of claim language may raise a question as to its limiting effect: (A) statements of intended use or field of use, including statements of purpose or intended use in the preamble, (B) "adapted to" or "adapted for" clauses, (C) "wherein" or "whereby" clauses, (D) contingent limitations, (E) printed matter, or (F) terms with associated functional language. See MPEP 2103 and 2111.04. Additionally, the court noted that a "‘whereby clause in a method claim is not given weight when it simply expresses the intended result of a process step positively recited.’" Id. (quoting Minton v. Nat’l Ass’n of Securities Dealers, Inc., 336 F.3d 1373, 1381, 67 USPQ2d 1614, 1620 (Fed. Cir. 2003)) and MPEP 2111.04.
Absent any clear and convincing evidence to the contrary, the method would naturally arrive at the claimed feature since Sellgson teaches the presently claimed water-swellable dietary fiber (dietary fiber resistant to digestion found in plant cell walls) and hydrating the fiber as addressed above in claim 1, and Sellgson teaches the dietary fiber is obtained from a variety of sources and the product resembles meat in texture and eating quality (P9, L40 and 47-48; and P12, L28-35).
With respect to claim 5, Sellgson is relied upon for the teaching of the method of claim 2 as addressed above.
Regarding the recitation of wherein the amount of the water-swellable dietary fiber in the dough is 0.05 to 5 wt.% in claim 5, Sellgson does not expressly disclose the quantity of dietary fiber resistant to digestion found in plant cell walls (swellable dietary fiber). However, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to adjust the quantity of dietary fiber in Sellgson through routine experimentation with the expectation of successfully preparing an organoleptically desirable meat analog product. One of ordinary skill in the art would have been motivated to do so because Sellgson teaches additives, such as dietary fiber resistant to digestion found in plant cell walls (swellable dietary fiber), provides the product with enhanced palatability and biological effectiveness (P9, L11-12 and 48; P12, L28-30), and it is understood that, generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. There would have been a reasonable expectation of success. “[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.” In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP 2144.05 II).
With respect to claims 6, 7, and 8, Sellgson is relied upon for the teaching of the method of claims 2, 3, and 5, respectively, as addressed above.
Regarding the claim language of wherein a water absorption amount of the water-swellable dietary fiber is 3 mL or more per 1 g of the water-swellable dietary fiber in claims 6, 7, and 8, it is noted that this recitation relates to the resulting effect of practicing the claimed method. Applicant is reminded that language that suggests or makes a feature or step optional but does not require that feature or step does not limit the scope of a claim under the broadest reasonable claim interpretation. The following types of claim language may raise a question as to its limiting effect: (A) statements of intended use or field of use, including statements of purpose or intended use in the preamble, (B) "adapted to" or "adapted for" clauses, (C) "wherein" or "whereby" clauses, (D) contingent limitations, (E) printed matter, or (F) terms with associated functional language. See MPEP 2103 and 2111.04. Additionally, the court noted that a "‘whereby clause in a method claim is not given weight when it simply expresses the intended result of a process step positively recited.’" Id. (quoting Minton v. Nat’l Ass’n of Securities Dealers, Inc., 336 F.3d 1373, 1381, 67 USPQ2d 1614, 1620 (Fed. Cir. 2003)) and MPEP 2111.04.
Absent any clear and convincing evidence to the contrary, the method would naturally arrive at the claimed feature since Sellgson teaches the presently claimed water-swellable dietary fiber (dietary fiber resistant to digestion found in plant cell walls) and hydrating the fiber as addressed above in claim 1, and Sellgson teaches the dietary fiber is obtained from a variety of sources and the product resembles meat in texture and eating quality (P9, L40 and 47-48; and P12, L28-35).
With respect to claim 11, Sellgson relates to process of making meat analogs (P3, L43-45).
Regarding the claim language of (a) dispersing methylcellulose in an oil and/or fat to obtain a methylcellulose dispersion; (b) swelling and dispersing a water-swellable dietary fiber in water to obtain a water- swellable dietary fiber dispersion; (c) mixing the methylcellulose dispersion and the water-swellable dietary fiber dispersion to prepare an oil-in-water emulsion; (d) mixing a textured plant protein material with the oil-in-water emulsion to prepare a dough; and (e) molding the dough prepared in (d), and then heating the molded dough to produce a meat substitute processed food in claim 11, Sellgson teaches the meat analog is prepared by providing a texturized vegetable protein material. Suitable materials, such as methylcellulose, dietary fiber resistant to digestion found in plant cell walls (swellable dietary fiber), water, and fat/oil, may be included as well. In one embodiment, some of the ingredients, such as fiber and the texturized vegetable protein, are hydrated in water, the remaining ingredients including fat are added to the hydrated ingredients and mixed to form a dough, and the dough is molded and heated to form the meat analog (P3, L19-20 and 43-45; P8, L56-P9, L1; P9, L8-13, 32-34, 36-37, and 48; P11, L46; P12, L23-25 and 28-30; and P14, Example 1).
Sellgson does not expressly disclose the methylcellulose is dispersed in the oil and/or fat, mixing the methylcellulose dispersion with the fiber dispersion to form an emulsion, or mixing the texturized vegetable protein with the emulsion. However, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to change the sequence of adding ingredients in the method of Sellgson through routine experimentation with the expectation of successfully preparing a functional meat analog product. One of ordinary skill in the art would have been motivated to do so because Sellgson teaches of substantially the same meat analog product produced by substantially the same method as instantly claimed, the order in which the ingredients are added in the method is not seen as critical, and it is understood that to switch the order of performing process steps, i.e. the order of the addition of the ingredients into the final mixture, would be obvious absent any clear and convincing evidence and/or arguments to the contrary (MPEP 2144.04). There would have been a reasonable expectation of success. “Selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results.” In re Burhans, 154 F.2d 690, 69 USPQ 330 (CCPA 1946)
Regarding the claim language of wherein the meat substitute processed food is free from livestock meat and egg white in claim 11, Sellgson teaches the vegetable protein replaces all of the animal protein in the product (P3, L45).
With respect to claim 12, Sellgson is relied upon for the teaching of the method of claim 1 as addressed above.
Regarding the recitation of wherein the dough comprises an oil-in-water emulsion gel comprising methylcellulose in claim 12, it is noted that this recitation relates to the resulting effect of practicing the claimed method. Applicant is reminded that language that suggests or makes a feature or step optional but does not require that feature or step does not limit the scope of a claim under the broadest reasonable claim interpretation. The following types of claim language may raise a question as to its limiting effect: (A) statements of intended use or field of use, including statements of purpose or intended use in the preamble, (B) "adapted to" or "adapted for" clauses, (C) "wherein" or "whereby" clauses, (D) contingent limitations, (E) printed matter, or (F) terms with associated functional language. See MPEP 2103 and 2111.04. Additionally, the court noted that a "‘whereby clause in a method claim is not given weight when it simply expresses the intended result of a process step positively recited.’" Id. (quoting Minton v. Nat’l Ass’n of Securities Dealers, Inc., 336 F.3d 1373, 1381, 67 USPQ2d 1614, 1620 (Fed. Cir. 2003)) and MPEP 2111.04.
Absent any clear and convincing evidence to the contrary, the method would naturally arrive at the claimed gel comprising methylcellulose since Sellgson teaches the claimed ingredients as well as a method that is substantially similar to the presently claimed method as addressed above in claim 1, and Sellgson teaches the product resembles meat in texture and eating quality (P9, L40 and 47-48).
Regarding the claim language of and the meat substitute processed food is free from livestock meat and egg white in claim 12, Sellgson teaches the vegetable protein replaces all of the animal protein in the product (P3, L45).
With respect to claim 13, Sellgson is relied upon for the teaching of the method of claim 1 as addressed above.
Regarding the recitation of wherein the amount of the water-swellable dietary fiber in the dough is 0.05 to 5 wt.% in claim 13, Sellgson does not expressly disclose the quantity of dietary fiber resistant to digestion found in plant cell walls (swellable dietary fiber). However, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to adjust the quantity of dietary fiber in Sellgson through routine experimentation with the expectation of successfully preparing an organoleptically desirable meat analog product. One of ordinary skill in the art would have been motivated to do so because Sellgson teaches additives, such as dietary fiber resistant to digestion found in plant cell walls (swellable dietary fiber), provides the product with enhanced palatability and biological effectiveness (P9, L11-12 and 48; P12, L28-30), and it is understood that, generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. There would have been a reasonable expectation of success. “[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.” In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP 2144.05 II).
Regarding the claim language of and the meat substitute processed food is free from livestock meat and egg white in claim 13, Sellgson teaches the vegetable protein replaces all of the animal protein in the product (P3, L45).
With respect to claim 14, Sellgson is relied upon for the teaching of the method of claim 1 as addressed above.
Regarding the claim language of wherein a water absorption amount of the water-swellable dietary fiber is 3 mL or more per 1 g of the water-swellable dietary fiber in claim 14, it is noted that this recitation relates to the resulting effect of practicing the claimed method. Applicant is reminded that language that suggests or makes a feature or step optional but does not require that feature or step does not limit the scope of a claim under the broadest reasonable claim interpretation. The following types of claim language may raise a question as to its limiting effect: (A) statements of intended use or field of use, including statements of purpose or intended use in the preamble, (B) "adapted to" or "adapted for" clauses, (C) "wherein" or "whereby" clauses, (D) contingent limitations, (E) printed matter, or (F) terms with associated functional language. See MPEP 2103 and 2111.04. Additionally, the court noted that a "‘whereby clause in a method claim is not given weight when it simply expresses the intended result of a process step positively recited.’" Id. (quoting Minton v. Nat’l Ass’n of Securities Dealers, Inc., 336 F.3d 1373, 1381, 67 USPQ2d 1614, 1620 (Fed. Cir. 2003)) and MPEP 2111.04.
Absent any clear and convincing evidence to the contrary, the method would naturally arrive at the claimed feature since Sellgson teaches the presently claimed water-swellable dietary fiber (dietary fiber resistant to digestion found in plant cell walls) and hydrating the fiber as addressed above in claim 1, and Sellgson teaches the dietary fiber is obtained from a variety of sources and the product resembles meat in texture and eating quality (P9, L40 and 47-48; and P12, L28-35).
Regarding the claim language of and the meat substitute processed food is free from livestock meat and egg white in claim 14, Sellgson teaches the vegetable protein replaces all of the animal protein in the product (P3, L45).
With respect to claim 15, Sellgson is relied upon for the teaching of the method of claim 2 as addressed above.
Regarding the recitation of wherein the amount of the water-swellable dietary fiber in the dough is 0.05 to 5 wt.% in claim 15, Sellgson does not expressly disclose the quantity of dietary fiber resistant to digestion found in plant cell walls (swellable dietary fiber). However, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to adjust the quantity of dietary fiber in Sellgson through routine experimentation with the expectation of successfully preparing an organoleptically desirable meat analog product. One of ordinary skill in the art would have been motivated to do so because Sellgson teaches additives, such as dietary fiber resistant to digestion found in plant cell walls (swellable dietary fiber), provides the product with enhanced palatability and biological effectiveness (P9, L11-12 and 48; P12, L28-30), and it is understood that, generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. There would have been a reasonable expectation of success. “[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.” In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP 2144.05 II).
Regarding the claim language of and the meat substitute processed food is free from livestock meat and egg white in claim 15, Sellgson teaches the vegetable protein replaces all of the animal protein in the product (P3, L45).
With respect to claims 16, 17, and 18, Sellgson is relied upon for the teaching of the method of claims 2, 3, and 5, respectively, as addressed above.
Regarding the claim language of wherein a water absorption amount of the water-swellable dietary fiber is 3 mL or more per 1 g of the water-swellable dietary fiber in claims 16, 17, and 18, it is noted that this recitation relates to the resulting effect of practicing the claimed method. Applicant is reminded that language that suggests or makes a feature or step optional but does not require that feature or step does not limit the scope of a claim under the broadest reasonable claim interpretation. The following types of claim language may raise a question as to its limiting effect: (A) statements of intended use or field of use, including statements of purpose or intended use in the preamble, (B) "adapted to" or "adapted for" clauses, (C) "wherein" or "whereby" clauses, (D) contingent limitations, (E) printed matter, or (F) terms with associated functional language. See MPEP 2103 and 2111.04. Additionally, the court noted that a "‘whereby clause in a method claim is not given weight when it simply expresses the intended result of a process step positively recited.’" Id. (quoting Minton v. Nat’l Ass’n of Securities Dealers, Inc., 336 F.3d 1373, 1381, 67 USPQ2d 1614, 1620 (Fed. Cir. 2003)) and MPEP 2111.04.
Absent any clear and convincing evidence to the contrary, the method would naturally arrive at the claimed feature since Sellgson teaches the presently claimed water-swellable dietary fiber (dietary fiber resistant to digestion found in plant cell walls) and hydrating the fiber as addressed above in claim 1, and Sellgson teaches the dietary fiber is obtained from a variety of sources and the product resembles meat in texture and eating quality (P9, L40 and 47-48; and P12, L28-35).
Regarding the claim language of and the meat substitute processed food is free from livestock meat and egg white in claims 16, 17, and 18, Sellgson teaches the vegetable protein replaces all of the animal protein in the product (P3, L45).
With respect to claim 19, Sellgson relates to process of making meat analogs (P3, L43-45).
Regarding the claim language of “for improving a yield of a meat substitute processed food upon heating” in the preamble of claim 19, it is noted that this recitation is a statement of intended use or field of use. If the body of a claim fully and intrinsically sets forth all of the limitations of the claimed invention, and the preamble merely states the purpose or intended use of the invention, then the preamble is not considered a limitation and is of no significance to the claim construction. See MPEP 2111.02.
Regarding the claim language of (a) dispersing methylcellulose in an oil and/or fat to obtain a methylcellulose dispersion; (b) swelling and dispersing a water-swellable dietary fiber in water to obtain a water- swellable dietary fiber dispersion; (c) mixing the methylcellulose dispersion and the water-swellable dietary fiber dispersion to prepare an oil-in-water emulsion; (d) mixing a textured plant protein material with the oil-in-water emulsion to prepare a dough; and (e) molding the dough prepared in (d), and then heating the molded dough to produce a meat substitute processed food in claim 19, Sellgson teaches the meat analog is prepared by providing a texturized vegetable protein material. Suitable materials, such as methylcellulose, dietary fiber resistant to digestion found in plant cell walls (swellable dietary fiber), water, and fat/oil, may be included as well. In one embodiment, some of the ingredients, such as fiber and the texturized vegetable protein, are hydrated in water, the remaining ingredients including fat are added to the hydrated ingredients and mixed to form a dough, and the dough is molded and heated to form the meat analog (P3, L19-20 and 43-45; P8, L56-P9, L1; P9, L8-13, 32-34, 36-37, and 48; P11, L46; P12, L23-25 and 28-30; and P14, Example 1).
Sellgson does not expressly disclose the methylcellulose is dispersed in the oil and/or fat, mixing the methylcellulose dispersion with the fiber dispersion to form an emulsion, or mixing the texturized vegetable protein with the emulsion. However, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to change the sequence of adding ingredients in the method of Sellgson through routine experimentation with the expectation of successfully preparing a functional meat analog product. One of ordinary skill in the art would have been motivated to do so because Sellgson teaches of substantially the same meat analog product produced by substantially the same method as instantly claimed, the order in which the ingredients are added in the method is not seen as critical, and it is understood that to switch the order of performing process steps, i.e. the order of the addition of the ingredients into the final mixture, would be obvious absent any clear and convincing evidence and/or arguments to the contrary (MPEP 2144.04). There would have been a reasonable expectation of success. “Selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results.” In re Burhans, 154 F.2d 690, 69 USPQ 330 (CCPA 1946).
With respect to claim 20, Sellgson relates to process of making meat analogs (P3, L43-45).
Regarding the claim language of “for improving a yield of a meat substitute processed food upon heating” in the preamble of claim 20, it is noted that this recitation is a statement of intended use or field of use. If the body of a claim fully and intrinsically sets forth all of the limitations of the claimed invention, and the preamble merely states the purpose or intended use of the invention, then the preamble is not considered a limitation and is of no significance to the claim construction. See MPEP 2111.02.
Regarding the claim language of (a) dispersing methylcellulose in an oil and/or fat to obtain a methylcellulose dispersion; (b) swelling and dispersing a water-swellable dietary fiber in water to obtain a water- swellable dietary fiber dispersion; (c) mixing the methylcellulose dispersion and the water-swellable dietary fiber dispersion to prepare an oil-in-water emulsion; (d) mixing a textured plant protein material with the oil-in-water emulsion to prepare a dough; and (e) molding the dough prepared in (d), and then heating the molded dough to produce a meat substitute processed food in claim 20, Sellgson teaches the meat analog is prepared by providing a texturized vegetable protein material. Suitable materials, such as methylcellulose, dietary fiber resistant to digestion found in plant cell walls (swellable dietary fiber), water, and fat/oil, may be included as well. In one embodiment, some of the ingredients, such as fiber and the texturized vegetable protein, are hydrated in water, the remaining ingredients including fat are added to the hydrated ingredients and mixed to form a dough, and the dough is molded and heated to form the meat analog (P3, L19-20 and 43-45; P8, L56-P9, L1; P9, L8-13, 32-34, 36-37, and 48; P11, L46; P12, L23-25 and 28-30; and P14, Example 1).
Sellgson does not expressly disclose the methylcellulose is dispersed in the oil and/or fat, mixing the methylcellulose dispersion with the fiber dispersion to form an emulsion, or mixing the texturized vegetable protein with the emulsion. However, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to change the sequence of adding ingredients in the method of Sellgson through routine experimentation with the expectation of successfully preparing a functional meat analog product. One of ordinary skill in the art would have been motivated to do so because Sellgson teaches of substantially the same meat analog product produced by substantially the same method as instantly claimed, the order in which the ingredients are added in the method is not seen as critical, and it is understood that to switch the order of performing process steps, i.e. the order of the addition of the ingredients into the final mixture, would be obvious absent any clear and convincing evidence and/or arguments to the contrary (MPEP 2144.04). There would have been a reasonable expectation of success. “Selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results.” In re Burhans, 154 F.2d 690, 69 USPQ 330 (CCPA 1946)
Regarding the claim language of wherein the meat substitute processed food is free from livestock meat and egg white in claim 20, Sellgson teaches the vegetable protein replaces all of the animal protein in the product (P3, L45).
Conclusion
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/T.L.M/Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793
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