DETAILED ACTION
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.
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, 4-7, 9-11, 13 and 16-20 are rejected under 35 U.S.C. 103 as being unpatentable over United States Patent Application No. 2013/0236626 (BRACKENRIDGE).
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As to claims 1 and 20, BRACKENRIDGE teaches mixing vegetable oil [0016]; starch n-octenyl succinic anhydride modified starch; methylcellulose [0015], [0021], water [0019], vegetable protein [0010] and binder in the form of a starch, such as waxy maize starch.
In the Veggy Burger example [0021], [0022], BRACKENRIDGE teaches that the mixture is heated. While the ingredients are mixed and then heated with agitation to 165 to 170° in the example [0021], it would have been obvious to vary the time and temperature based on amount of mixing needed. Indeed, the general disclosure of Brackenridge does not limit the temperature.
Moreover, 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. "[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) (Claimed process which was performed at a temperature between 40°C and 80°C and an acid concentration between 25% and 70% was held to be prima facie obvious over a reference process which differed from the claims only in that the reference process was performed at a temperature of 100°C and an acid concentration of 10%.); see also Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382 ("The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages."); In re Hoeschele, 406 F.2d 1403, 160 USPQ 809 (CCPA 1969) (Claimed elastomeric polyurethanes which fell within the broad scope of the references were held to be unpatentable thereover because, among other reasons, there was no evidence of the criticality of the claimed ranges of molecular weight or molar proportions.). For more recent cases applying this principle, see Merck & Co. Inc. v. Biocraft Lab. Inc., 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir.), cert. denied, 493 U.S. 975 (1989); In re Kulling, 897 F.2d 1147, 14 USPQ2d 1056 (Fed. Cir. 1990); and In re Geisler, 116 F.3d 1465, 43 USPQ2d 1362 (Fed. Cir. 1997); Smith v. Nichols, 88 U.S. 112, 118-19 (1874) (a change in form, proportions, or degree "will not sustain a patent"); In re Williams, 36 F.2d 436, 438 (CCPA 1929) ("It is a settled principle of law that a mere carrying forward of an original patented conception involving only change of form, proportions, or degree, or the substitution of equivalents doing the same thing as the original invention, by substantially the same means, is not such an invention as will sustain a patent, even though the changes of the kind may produce better results than prior inventions."). See also KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007) (identifying "the need for caution in granting a patent based on the combination of elements found in the prior art.").
The fat mimetic and emulsion is refrigerated [0021]. It would have been obvious to refrigerate the fat mimetic and emulsion, as cooling the emulsion provides texture, stability, and final product quality. Indeed, in [0021] , while the product is hot filled and cooled, the product is eventually ground, diced, grated, or shredded to desired size. As cooling the emulsion before mixing with plant protein is a deliberate processing step that improves texture, stability, and final product quality.
However, it would have been obvious to vary the order of steps to maximize mixing. The specification also does not provide any evidence that the order in which the ingredients are added. A number of examples are provided beginning on page 15 but none of the examples show that the manner in which the ingredients are mixed are critical. See also, Ex parte Rubin, 128 USPQ 440 (Bd. App. 1959) (Prior art reference disclosing a process of making a laminated sheet wherein a base sheet is first coated with a metallic film and thereafter impregnated with a thermosetting material was held to render prima facie obvious claims directed to a process of making a laminated sheet by reversing the order of the prior art process steps.). See also In re Burhans, 154 F.2d 690, 69 USPQ 330 (CCPA 1946) (selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results); In re Gibson, 39 F.2d 975, 5 USPQ 230 (CCPA 1930) (Selection of any order of mixing ingredients is prima facie obvious.).
In the Examples, the vegetable fat is added in amounts of 15-35% [0019]. This overlaps the claimed range. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (The prior art taught carbon monoxide concentrations of "about 1-5%" while the claim was limited to "more than 5%." The court held that "about 1-5%" allowed for concentrations slightly above 5% thus the ranges overlapped.); In re Geisler, 116 F.3d 1465, 1469-71, 43 USPQ2d 1362, 1365-66 (Fed. Cir. 1997). Moreover, it would have been obvious to one of ordinary skill in the art to select any portions of the disclosed ranges including the instantly claimed ranges from the ranges disclosed in the prior art references, particularly in view of the fact that; "The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set percentage ranges is the optimum combination of percentages" In re Peterson 65 USPQ2d 1379 (CAFC 2003). Also In re Malagari, 182 USPQ 549,533 (CCPA 1974) and MPEP 2144.05.
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In [0012], BRACKENRDIGE teaches maize, rice, and wheat starch can be added.
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In [0012], it is taught that corn and tapioca starch can be added. That starch can be modified [0014]. The modified starch exhibits an increase in stability against heat, acids, or freezing, improved texture, increase or decrease viscosity, increase or decrease gelatinization times, and increase or decrease solubility. It would have been obvious to modify the starches as it is taught that the modified starches increase stability and other properties of the product.
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BRACKENRDIGE teaches that the source of the starches can be maize, rice, and wheat starch can be added [0013]. In [0014], the desirability of using modified starch is discussed.
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At [0014], BRACKENRDIGE teaches n-octenyl succinic anhydride starch can be added.
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In [0016], vegetable oils such as corn and cottonseed can be used.
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As to claims 10 and 11, BRACKENBRIDGE teaches that starches [0014] can be added to increase the stability, texture and viscosity of products. In [0015], hydrocolloids such as methylcellulose are added to vary the viscosity. It would have been obvious to vary the amount of starches and hydrocolloids relative to the oil based on the desired stability, texture and viscosity of the product. Moreover, 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. "[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) (Claimed process which was performed at a temperature between 40°C and 80°C and an acid concentration between 25% and 70% was held to be prima facie obvious over a reference process which differed from the claims only in that the reference process was performed at a temperature of 100°C and an acid concentration of 10%.); see also Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382 ("The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages."); In re Hoeschele, 406 F.2d 1403, 160 USPQ 809 (CCPA 1969) (Claimed elastomeric polyurethanes which fell within the broad scope of the references were held to be unpatentable thereover because, among other reasons, there was no evidence of the criticality of the claimed ranges of molecular weight or molar proportions.). For more recent cases applying this principle, see Merck & Co. Inc. v. Biocraft Lab. Inc., 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir.), cert. denied, 493 U.S. 975 (1989); In re Kulling, 897 F.2d 1147, 14 USPQ2d 1056 (Fed. Cir. 1990); and In re Geisler, 116 F.3d 1465, 43 USPQ2d 1362 (Fed. Cir. 1997); Smith v. Nichols, 88 U.S. 112, 118-19 (1874) (a change in form, proportions, or degree "will not sustain a patent"); In re Williams, 36 F.2d 436, 438 (CCPA 1929) ("It is a settled principle of law that a mere carrying forward of an original patented conception involving only change of form, proportions, or degree, or the substitution of equivalents doing the same thing as the original invention, by substantially the same means, is not such an invention as will sustain a patent, even though the changes of the kind may produce better results than prior inventions."). See also KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007) (identifying "the need for caution in granting a patent based on the combination of elements found in the prior art.").
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In [0019], it is taught that the vegetable fat can range from 15-35%. This overlaps the claimed amount.
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As to claim 16, non-animal sourced ingredients are used [0007].
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As to claim 17, there is no mention as to using high-fructose corn syrup.
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As to claim 19, it is taught that guar gum/xanthan gum can range from 0-3%. Given that the amount can be zero, it is considered that the addition of guar gum/xanthan is optional.
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The waxy maize starch can be added [0013] and can be modified to increase stabilization [0014]. It would have been obvious to use a stabilized and waxy maize starch cross-linked for greater stabilization, as BRACKENRIDGE teaches one skilled in the art to provide a stabilized, modified starch.
Claims 2 and 3 are rejected under 35 U.S.C. 103 as being unpatentable over BRACKENRIDGE as applied to claim 1 above, and further in view of United States Patent Application Publication No. 2020029590 (NURMI).
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The Veggy Burger [0021]-[0022] can be cooked [0022]. Modified starch is added to provide a starch with increase stability against heat, acids, or freezing, improved texture, increase or decrease viscosity, increase or decrease gelatinization times, and increase or decrease solubility, among others. [0014]. However, BRACKENRIDGE is silent as to freezing and reheating the product.
NURMI teaches consumers want a meat analogue product that can be frozen before cooking and remain heat stable [025] and [0136]. The product can be microwaved, fried, grilled or cooked and the product does not melt when fried on a hot fry-pan or a grill or when heated with microwaves [0025] and [0136].
It would have been obvious to one skilled in the art to freeze and reheat the product before consumption given NURMI teaches consumers want a meat analogue product that can be frozen before cooking and remain heat stable [025] and [0136].
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over BRACKENRIDGE as applied to claim 1 above, and further in view of United States Patent Application Publication No. 2011/0151097 (TUASON)
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BRACKENRIDGE teaches the use of modified starches [0014] but silent as hydroxypropyl distarch phosphate modified starch.
TUASON teaches that hydroxypropyl distarch phosphate is a preferred starch [0029] for increasing the stability of food products [0029]. Thus, it would have been obvious to one skilled to add hydroxypropyl distarch phosphate modified starch to BRACKENRIDGE, as it is taught that the starch increases the stability of food products.
Claims 14-15 are rejected under 35 U.S.C. 103 as being unpatentable over BRACKENRIDGE as applied to claim 1 above, and further in view of WO2021078708 (VAN LEEUWEN).
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As to claims 14-15, BRACKENRDIGE teaches the addition of protein [0010] but silent as to adding textured protein itself.
VAN LEEWUN teaches at pg. 22, lines 20-25 that texturized vegetable protein adds to the cohesiveness and eating quality of vegetable protein products. The texturized plant protein can be soy or pea )pg. 22, lines 4-10.
It would have been obvious for one skilled in the art to add texturized vegetable protein to the product of BRACKENRIDGE to enhance the cohesiveness and eating quality of the resulting product. The broadest teachings do not limit the temperature. 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. "[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) (Claimed process which was performed at a temperature between 40°C and 80°C and an acid concentration between 25% and 70% was held to be prima facie obvious over a reference process which differed from the claims only in that the reference process was performed at a temperature of 100°C and an acid concentration of 10%.); see also Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382 ("The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages."); In re Hoeschele, 406 F.2d 1403, 160 USPQ 809 (CCPA 1969) (Claimed elastomeric polyurethanes which fell within the broad scope of the references were held to be unpatentable thereover because, among other reasons, there was no evidence of the criticality of the claimed ranges of molecular weight or molar proportions.). For more recent cases applying this principle, see Merck & Co. Inc. v. Biocraft Lab. Inc., 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir.), cert. denied, 493 U.S. 975 (1989); In re Kulling, 897 F.2d 1147, 14 USPQ2d 1056 (Fed. Cir. 1990); and In re Geisler, 116 F.3d 1465, 43 USPQ2d 1362 (Fed. Cir. 1997); Smith v. Nichols, 88 U.S. 112, 118-19 (1874) (a change in form, proportions, or degree "will not sustain a patent"); In re Williams, 36 F.2d 436, 438 (CCPA 1929) ("It is a settled principle of law that a mere carrying forward of an original patented conception involving only change of form, proportions, or degree, or the substitution of equivalents doing the same thing as the original invention, by substantially the same means, is not such an invention as will sustain a patent, even though the changes of the kind may produce better results than prior inventions."). See also KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007) (identifying "the need for caution in granting a patent based on the combination of elements found in the prior art.").
Moreover, it is noted that the applicant does not provide any evidence that the temperature or order of steps provides and unexpected result.
The specification also does not provide any evidence that the order in which the ingredients are added. A number of examples are provided beginning on page 15 but none of the examples show that the manner in which the ingredients are mixed are critical. Thus, the citation to Ex parte Rubin remains on point. Ex parte Rubin, 128 USPQ 440 (Bd. App. 1959) (Prior art reference disclosing a process of making a laminated sheet wherein a base sheet is first coated with a metallic film and thereafter impregnated with a thermosetting material was held to render prima facie obvious claims directed to a process of making a laminated sheet by reversing the order of the prior art process steps.). See also In re Burhans, 154 F.2d 690, 69 USPQ 330 (CCPA 1946) (selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results); In re Gibson, 39 F.2d 975, 5 USPQ 230 (CCPA 1930) (Selection of any order of mixing ingredients is prima facie obvious.).
Response to Arguments
Applicant's arguments filed 5/6/2026 have been fully considered but they are not persuasive.
It is argued that Brackenridge does not teach the amended process as a whole. Brackenridge's vegan fat mimetic is prepared by heating the fat mimetic ingredients to 165 to 170°F, "hot-filled and cooled," refrigerated for "a minimum of 24 hours," after which the product "can be ground, diced, grated, or shredded" before use. Brackenridge [0020]. Methylcellulose is then added separately, not as part of the fat mimetic. See "Veggy Burger" example, Brackenridge [0021]-[0022]. The Veggy Burger example then adds the vegan "fat mimetic, and methylcellulose to [the] mixer." Brackenridge [0021]-[0022]. By contrast, amended claim 1 requires forming the vegetable oil/starch/methylcellulose emulsion at about 60°F to about 100°F, and then mixing that emulsion in liquid or semi-solid form with hydrated plant protein only when the emulsion "has a temperature of about 40°F or less." Brackenridge therefore does not teach the amended limitations of claim 1. Specifically, Brackenridge does not disclose mixing the vegetable oil/starch/methylcellulose to form the emulsion "at about 60°F to about 100°F" and then mixing the emulsion with hydrated plant protein while "the vegetable oil/starch/methylcellulose emulsion has a temperature of about 40°F or less."
However, Brackenridge only exemplifies a high temperature range. The general disclosure of Brackenridge does not limit the temperature. While the ingredients are mixed and then heated with agitation to 165 to 170° in the example [0021], it would have been obvious to vary the time and temperature based on amount of mixing needed. Indeed, the general disclosure of Brackenridge does not limit the temperature.
As to temperature of the emulsion, the fat mimetic and emulsion is refrigerated [0021]. It would have been obvious to refrigerate the fat mimetic and emulsion, as cooling the emulsion provides texture, stability, and final product quality. Indeed, in [0021] , while the product is hot filled and cooled, the product is eventually ground, diced, grated, or shredded to desired size. As cooling the emulsion before mixing with plant protein is a deliberate processing step that improves texture, stability, and final product quality.
As to the rejections citing Nurmi, Tuason, and Van Leeuwen, applicant argues that these references do not teach the low-temperature emulsion formation or workflow order. However, Brackenridge is proper for the reasons noted above.
Conclusion
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 PHILIP A DUBOIS whose telephone number is (571)272-6107. The examiner can normally be reached M-F, 9:30-6:00p.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nikki Dees can be reached at 571-270-3435. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/PHILIP A DUBOIS/Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791
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