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
The status of the claims stands as follows:
Pending claims: 1-10 and 18-27
Withdrawn claims: None
Canceled claims: 11-17
Claims currently under consideration: 1-10 and 18-27
Currently rejected claims: 1-10 and 18-27
Allowed claims: None
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Claim Objections
Claim 1 is objected to because of the following informalities: the claim recites “TG enzyme” without indicating what the abbreviation stands for. Appropriate correction is required. The abbreviation is presumed to refer to transglutaminase.
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 1-10 and 18-27 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.
Claims 1-5 and 20-26 recite numerous instances of units as simply “parts by weight”, which is vague and indefinite in that it is unclear what the total weight to which the claimed unit should be compared against. Often, such units would be recited as, e.g., 1-6 parts by weight per 100 parts weight of the total composition; however, claim 5 recites a value that exceeds 100, thus precluding the ranges from being in relation to a total value of 100 parts by weight. For examination purposes, the only limitations that may be gleaned from the claimed ranges are relative amounts for claims (or series of dependent claims) that recite multiple such ranges.
Claims 10 and 26 recite “essence” which is vague and indefinite in that such a component is not clearly defined in terms of what would fall within or outside the scope of the term.
Claims 6-9, 18, 19, and 27 are rejected due to their dependency from rejected claim 1.
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 1-10 and 18-27 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]), vegetable oil ([0101], [0150], Table 6), a thickener ([0138], methylcellulose), and auxiliary materials ([0130]).
Geistlinger et al. does not specifically disclose the yest protein as being extruded puffed yeast protein filaments, the inclusion of “TG enzyme” (transglutaminase), or the claimed amounts of “1-6 parts by weight” meat flavor yeast extract, “8-30 parts by weight” extruded puffed yeast protein filaments, or “1-6 parts by weight” TG enzyme.
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 product 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 “TG enzyme”, or 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 claimed amounts of components, Geistlinger et al. discloses the flavor component as being included in an amount of about 0.01-5% by weight ([0130], [0126]). A skilled practitioner would also recognize that a concentration of flavoring would be a result-effective variable that would be added as desired in order to attain a particular flavor. Any concentration of the flavoring component would thus be obvious, including the claimed amount of “1-6 parts by weight” of the meat flavor yeast extract. As for the protein, Geistlinger et al. discloses that the yeast protein may be present in an amount of “at least about 1% by weight” ([0069]), which effectively renders any concentration of yeast protein obvious, including the claimed amount of “8-30 parts by weight”. As for the TG enzyme, Schmidt et al. teaches that transglutaminase improves textural characteristics via catalyzing the formation of cross-links within and between protein molecules ([0038]). A skilled practitioner would recognize that the degree of the cross-linking and the subsequent effects on texture would depend on the concentration of the transglutaminase, such that the concentration of transglutaminase is a result-effective variable. Any concentration of the enzyme would thus be obvious, which renders the claimed amount of “1-6 parts by weight” 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 claim 2, the rationale discussed in relation to claim 1 applies, such that the claimed ranges of “2-5 parts by weight” meat flavor yeast extract, “10-20 parts by weight” extruded puffed yeast protein filaments, and “2-5 parts by weight” TG enzyme would be obvious.
As for claim 3, Geistlinger et al. discloses the non-microbial protein content in the composition as being from about 5-68% by weight ([0075]), which is considered to render the claimed range of “15-75 parts by weight” obvious, since claim 1 indicates the yeast protein may amount to up to 30 parts by weight and claim 3 indicates the vegetable protein may range from, e.g., 15-30 parts, such that the vegetable protein content would at least be 50% by weight or less, which would overlap the disclosed range.
As for claim 4, Geistlinger et al. discloses that “[a] suitable binding agent can be identified by titrating different binding agents against the cohesiveness and fracturability of the patty” ([0138]), which suggests that the concentration may likewise be determined by such experimentation. A skilled practitioner would additionally expect the amount of thickener/binding agent added to directly affect measurable organoleptic properties of a structured finished product, which suggests the concentration is a result-effective variable subject to optimization. The claimed concentration of “2-40 parts by weight” thickener is thus considered obvious to a skilled practitioner.
As for claim 5, the previous analysis in relation to claim 1 determined that any concentration of the flavoring component would thus be obvious, where the flavoring component is considered an auxiliary material. The claimed range of “59.1-235 parts by weight” is thus considered obvious to a skilled practitioner.
As for claim 6, Geistlinger et al. discloses the vegetable protein as being soybean protein isolate powder ([0150], Table 6).
As for claim 7, Geistlinger et al. discloses the vegetable oil as comprising rapeseed oil ([0150], Table 1). 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 claim 8, Geistlinger et al. discloses the vegetarian meat product as comprising methylcellulose ([0138]).
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 20, the rationale discussed in relation to claim 1 applies, such that the claimed ranges of “2-5 parts by weight” meat flavor yeast extract, “10-20 parts by weight” extruded puffed yeast protein filaments, and “2-5 parts by weight” TG enzyme would be obvious.
As for claim 20, the rationale discussed in relation to claim 1 applies, such that the claimed range of “3.5-5 parts by weight” meat flavor yeast extract would be obvious.
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 23, Geistlinger et al. discloses the product as comprising soybean protein isolate powder ([0150], Table 6) and pea protein “in any other form” ([0075][0100]), which renders the addition of pea protein filament obvious. 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 (“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 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 relative concentrations, Geistlinger et al. discloses the proteins may be derived from “multiple natural or modified natural sources” ([0074]), which at least suggests that for a combination of proteins from multiple sources that equal concentrations may be used. A ratio of protein material from the three sources of 1:1:1 would thus be obvious, which renders the claimed amounts of “5-25 parts by weight” for each of vital wheat gluten, soybean protein isolate powder, and pea protein filaments obvious.
As for claim 24, Geistlinger et al. discloses the vegetable oil as comprising rapeseed oil ([0150], Table 1). 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 relative concentrations, Geistlinger et al. discloses the oils may be derived from “multiple natural or modified natural sources” ([0074]), which at least suggests that for a combination of oils from multiple sources that equal concentrations may be used. A ratio of oils from the two sources of 1:1 would thus be obvious, which renders the claimed amounts of “5-25 parts by weight” for each of rapeseed oil and coconut oil obvious.
As for claim 25, Geistlinger et al. discloses the inclusion of methylcellulose and Konjac flour, as well as indicating that a mixture of binding agents may be used ([0138]), which at least suggests that for a combination of binding agents that equal concentrations may be used. A ratio of binding agents from the two sources of 1:1 would thus be obvious, which renders the claimed amounts of “1-20 parts by weight” for each of methylcellulose and Konjac flour obvious.
As for claim 26, Geistlinger et al. discloses the flavoring as comprising salt (sodium chloride ([0130]), pepper ([0114]), 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]), As discussed in relation to claim 1, 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.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JEFFREY P MORNHINWEG whose telephone number is (571)270-5272. The examiner can normally be reached 8:30AM-5:00PM.
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/JEFFREY P MORNHINWEG/Primary Examiner, Art Unit 1793