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 .
Status of the Application
Receipt of the Response and Amendment after Non-Final Office Action filed 06/17/2026 is acknowledged.
Applicant has overcome the following rejections by virtue of the amendment or cancellation of the claims and/or persuasive remarks: (1) the objections of claims 1-10 and 18-27 have been withdrawn; and (2) the 35 U.S.C. 112(b) rejections of claims 10 and 26 have been withdrawn.
The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 1-10 and 18-27
Withdrawn claims: None
Previously canceled claims: 11-17
Newly canceled claims: 6-8, 20, and 23-25
Amended claims: 1, 2, 10, and 26
New claims: None
Claims currently under consideration: 1-5, 9, 10, 18, 19, 21, 22, 26, and 27
Currently rejected claims: 1-5, 9, 10, 18, 19, 21, 22, 26, and 27
Allowed claims: None
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1-5, 9, 10, 18, 19, 21, 22, 26, and 27 are rejected under 35 U.S.C. 103 as being unpatentable over Geistlinger et al. (U.S. 2016/0073671 A1) in view of Schmidt et al. (U.S. 2020/0060310 A1).
Regarding claim 1, Geistlinger et al. discloses a vegetarian meat product ([0007]-[0008], [0078]) made from yeast proteins ([0058], [0069], “[i]n preferred embodiments, the meat structured protein products comprise at least about 1% by weight of yeast protein”), the meat product comprising a meat flavor yeast extract ([0130], “animal meat flavor” and “yeast extract”), yeast protein ([0069]), vegetable protein ([0074]-[0075], [0150], Table 6, soybean protein isolate powder; [0100], pea protein “in any other form”, which would encompass pea protein filaments), vegetable oil ([0101], [0150], Table 6, rapeseed/canola oil), a thickener ([0138], methylcellulose and Konjac flour), and auxiliary materials ([0130]). The claimed requirement that the product “consist[s] of” the claimed components does not limit the claim any further than reciting “comprising”, since the list of components includes “auxiliary materials”, which may be any ingredient in any amount.
Geistlinger et al. does not specifically disclose (i) the yeast protein as being extruded puffed yeast protein filaments, (ii) the inclusion of transglutaminase (TG enzyme), (iii) the vegetable protein as comprising vital wheat gluten, (iv) the vegetable oil as comprising coconut oil, or (v) the claimed amounts of some components.
However, Schmidt et al. discloses protein for a structured plant protein meat analog ([0009]), wherein transglutaminase is added as a structural aid ([0038]), and wherein the protein may be puffed via extrusion ([0060], [0067]).
It would have been obvious to one having ordinary skill in the art to produce a meat product according to Geistlinger et al. with transglutaminase and extruded puffed yeast protein filaments. First, Geistlinger et al. discloses that in “some embodiments” the product would not include transglutaminase ([0083]), which suggests that other embodiments would include the enzyme. MPEP 2123 II (“Disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments.”). A skilled practitioner would be motivated to consult Schmidt et al. to confirm that transglutaminase is useful for imparting structural characteristics to a meat analog product ([0038]), which renders the inclusion of transglutaminase in the product of Geistlinger et al. obvious. Regarding the protein texturization, Geistlinger et al. discloses that the protein product may be produced via extrusion that denatures and aligns protein fibers ([0090]). The reference further states:
Any physiochemical parameter or extruder configuration parameter may influence the appearance, texture, and properties of the protein fibrous product. The physiochemical parameters include but are not limited to the formulation of the dough (e.g., protein type and content, carbohydrate type and content, lipid type and content, water content, other ingredients) and the cooking temperature. Configuration parameters include but are not limited to the extruder screw and barrel configuration (and resulting screw-induced shear pressure), heating profile across the heating zones, and dimensions of the cooling die. ([0091]).
Given the relatively broad instruction regarding the effects of extrusion on the protein product, a skilled practitioner would be motivated to consult Schmidt et al. for clarification regarding such a process. Since Schmidt et al. discloses that extrusion allows for manipulation of various attributes of a product, including puffing to various degrees as desired depending on the type of product being produced ([0060], [0067]), a skilled practitioner would find the extrusion of the yeast protein in Geistlinger et al. to form an extruded puffed yeast protein to be obvious.
As for the filamentous nature of the extruded proteins, Geistlinger et al. indicates that that the “high molecular components in the melt” become aligned upon extrusion, including “aligned protein fibers” ([0090]). Such instruction is considered to render yeast protein in the form of filaments obvious, since “aligned protein fibers” would be equivalent to filaments.
As for the vital wheat gluten, Geistlinger et al. discloses that in “some embodiments” the product would be gluten-free ([0083]), which suggests that other embodiments would include gluten. MPEP 2123 II. A skilled practitioner would be motivated to consult Schmidt et al. to confirm that vital wheat gluten is useful for addition to a meat analog product as a gel-forming protein ([0027]), which renders the inclusion of vital wheat gluten in the product of Geistlinger et al. obvious.
As for the coconut oil, Schmidt et al. discloses the addition of coconut oil to a vegetarian meat product ([0044]), which renders its inclusion in the product of Geistlinger et al. obvious in light of the generalized instruction of Geistlinger et al. regarding vegetable oils ([0101]).
As for the claimed amounts of components, the claim does not require all of the claimed components to have a particular “part by weight” limitation. While some components are so limited, others, such as “auxiliary materials”, may be at any concentration, including concentrations vastly greater than those of components having a required “part by weight” concentration. The claimed “part by weight” limitations are thus only relevant to the extent they require relative concentrations between components having such a limitation. Further, since the “auxiliary materials” may be at a concentration that is vastly greater than the other components, the claim includes embodiments where the other components may be essentially imperceptible. Any relative amounts of such components would be obvious, since no difference in relative amounts would necessarily even be perceived upon consumption. All of the claimed “parts by weight” limitations are consequently obvious to a skilled practitioner.
Additionally, MPEP 2144.05 II A states: “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.” No such evidence is presently apparent, especially given the lack of concentration limitations.
Attention is additionally invited to In re Levin, 84 USPQ 232, and the cases cited therein, which are considered on point to the fact situation of the present case. The court in Levin states:
This court has taken the position that new recipes or formulas for cooking food which involve the addition or elimination of common ingredients, or for treating them in ways which differ from the former practice, do not amount to invention merely because it is not disclosed that, in the constantly developing art of preparing food, no one else ever did the particular thing upon which the applicant asserts his right to a patent. In all such cases, there is nothing patentable unless the applicant by a proper showing further establishes a coaction or cooperative relationship between the selected ingredients which produces a new, unexpected, and useful function. In re Benjamin D. White, 17 C.C.P.A. (Patents) 956, 39 F.2d 974, 5 USPQ 267; In re Mason et al., 33 C.C.P.A. (Patents) 1144, 156 F.2d 189, 70 USPQ 221. Levin at 234.
Simply requiring a mixture of conventional ingredients will generally not amount to a non-obvious invention.
As for claims 2-4, the rationale discussed in relation to claim 1 as related to component concentrations applies, such that the claimed ranges would be obvious.
As for claim 5, the rationale discussed in relation to claim 1 as related to component concentrations applies, such that the claimed range would be obvious. Since the auxiliary materials may be at a relative concentration as high as 235 parts by weight and no other component is required to be higher than 10 parts by weight, the rationale remains valid that the auxiliary materials may be at a concentration so much higher than the other components that no appreciable difference between relative concentrations of the other components would be perceptible.
As for claim 9, Geistlinger et al. discloses the vegetarian meat product as comprising water ([0079], [0090]) and flavoring ([0130]).
As for claim 10, Geistlinger et al. discloses the flavoring as comprising salt (sodium chloride) and monosodium glutamate ([0130]).
As for claim 18, Geistlinger et al. discloses a sauce prepared with the vegetarian meat product ([0087]).
As for claim 19, Schmidt et al. discloses a food product prepared using rice with a vegetarian meat product ([0070]-[0071]).
As for claim 21, the rationale discussed in relation to claim 1 applies, such that the claimed range of “15-20 parts by weight” extruded puffed yeast protein filaments would be obvious.
As for claim 22, the rationale discussed in relation to claim 1 applies, such that the claimed range of “3.5-5 parts by weight” TG enzyme would be obvious.
As for claim 26, Geistlinger et al. discloses the flavoring as comprising salt (sodium chloride) ([0130]), pepper ([0114]), food-grade flavoring essence ([0113], “essential oils, non-essential oils”; [0128], various plant extracts), monosodium glutamate, white granulated sugar (i.e., “sugars”), ([0127], [0130]), and beet juice ([0129]), A skilled practitioner would recognize that a concentration of flavoring or colorant would be a result-effective variable that would be added as desired in order to attain a particular flavor or color. Any concentration of the flavoring/colorant components would thus be obvious, including the claimed amounts of each individual component.
As for claim 27, the claim is in the form of a product-by-process claim. MPEP 2113 I states: “[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.” MPEP 2144.04 IV C states: “Selection of any order of mixing ingredients is prima facie obvious.” Since the method of claim 27 does not require any concentrations for any component, any processing parameters (e.g., time, temperature, mixing conditions), or the exclusion of any additional components or processing steps, the method cannot be said to result in unexpected results that would be dependent on the sequence of method steps or component concentrations. (The “concentration” limitations of claim 1 do not have to be achieved by the method of claim 27; the composition may be altered outside the scope of the claimed method.) As such, the rejection of the product of claim 1 applies to the product of claim 27 as well, which is thus deemed obvious. Geistlinger et al. does disclose forming ([0138]) and packaging the vegetarian meat products ([0142]). Freezing of meat and meat analog products is extremely well known in the art and would thus be obvious.
Response to Arguments
Claim Objections: Applicant has overcome the objection of claim 1 based on amendment to the claim. Accordingly, the claim objection has been withdrawn.
Claim Rejections - 35 U.S.C. § 112: Applicant has overcome the 35 U.S.C. § 112(b) rejections of claims 1-10 and 18-27 based on amendments to claims and/or persuasive remarks. Accordingly, the 35 U.S.C. § 112(b) rejections have been withdrawn.
Claim Rejections - 35 U.S.C. § 103 of claims 1-10 and 18-27 over Geistlinger et al. and Schmidt et al.: Applicant’s arguments have been fully considered but they are not persuasive.
Applicant first argued that Geistlinger et al. differs from the claimed composition due to each being aimed at solving different problems in the prior art, such as improved texture and taste (Applicant’s Remarks, p. 10, ¶1 – p. 11, ¶1). Applicant argued the yeast components play a key role in improved flavor (Applicant’s Remarks, p. 11, ¶2 – p. 12, ¶1). Applicant argued that a practitioner would not have been motivated to select the claimed components based on the disclosure of Geistlinger et al. (Applicant’s Remarks, p. 12, ¶2).
However, the features upon which Applicant relies (i.e., improved taste, textural properties) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). The asserted difference in aim between the prior art and the claimed invention does not affect the patentability analysis. The scope of claim 1, wherein the claimed “concentrations” only effectively apply to relative amounts of components but not actual concentrations and “auxiliary materials” are not limited to any concentration, is so broad that it renders Applicant’s arguments regarding the effects of any of the concentrations or presence of components irrelevant and consequently unpersuasive.
Applicant next argued that the cited prior art does not teach “a targeted pre-extrusion treatment should be applied to a single specific component alone—such as yeast protein—prior to subsequent forming steps” (Applicant’s Remarks, p. 13, ¶3 – p. 14, ¶1).
Again, the features upon which Applicant relies are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). The claims do not require a method requiring the asserted process step.
Applicant then argued that the transglutaminase in Schmidt et al. serves a different purpose than for the claimed composition (Applicant’s Remarks, p. 14, ¶2 – p. 15, ¶3). Applicant further argued that Schmidt et al. addresses undesirable taste attributes via myceliation of a plant source, which differs from the method of the claimed composition (Applicant’s Remarks, p. 15, ¶3 – p. 16, ¶3).
However, MPEP 2144 IV states: “It is not necessary that the prior art suggest the combination to achieve the same advantage or result discovered by applicant.” That the transglutaminase of Schmidt et al. may be used for a different purpose than that of the claimed composition does not undermine the claim rejection. The taste of the claimed composition is not at issue, which undermines Applicant’s argument. While taste may be relevant to patentability for some compositions, the scope of the present claims as related to the lack of required concentrations renders taste irrelevant for the present analysis.
Applicant next argued that the cited prior art does not disclose the “technical solution defined in amended claim 1”, where the components are optimized for synergistic taste attributes (Applicant’s Remarks, p. 16, ¶4 – p. 18, ¶1).
Again, MPEP 2144 IV states: “It is not necessary that the prior art suggest the combination to achieve the same advantage or result discovered by applicant.” Claim 1 is merely directed to a composition. The technical problem it addresses or the alleged solution it provides do not affect the patentability analysis for the claim as presently written. Applicant’s argument is unpersuasive.
The rejections of claims 1-5, 9, 10, 18, 19, 21, 22, 26, and 27 have been maintained herein.
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.
Claims 1-5, 9, 10, 18, 19, 21, 22, 26, and 27 are rejected.
No claims are allowed at this time.
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/JEFFREY P MORNHINWEG/Primary Examiner, Art Unit 1793
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