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 .
Drawings
The drawings are objected to because the axes are unlabeled in Figure(s) 1, 3, 4A, 4B, 5A, and 5B. Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
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 1-15 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.
Claim 1 recites an amount of protein that is “within the range of 50-75%, preferably 50-70%” of the mixture. However, no basis (e.g. weight or volume) for the percentage is specified. Claims 2-6 depend from independent Claim 1 and are therefore also rejected.
Regarding Claims 1, 2, 4, 5, 6, 7, 8, 11, 14, and 15, the phrase "preferably" renders the claim indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Regarding Claims 1, 6, and 7, a broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claim 1 recites the broad recitation of 50-75% of protein, and the claim also recites 50-70% of protein, which is the narrower statement of the range/limitation. Claim 6 recites the broad recitation of 40-80% of water, and the claim also recites 55-75% and 59-70% of water, which is the narrower statement of the range/limitation. Claim 7 recites the broad recitation of 50-75% of protein, and the claim also recites 50-70% of protein, which is the narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
Claims 2-6 depend from independent Claim 1 and are therefore also rejected.
Claims 8-12 depend from independent Claim 7 and are therefore also rejected.
Claim 13 recites the composition of Claim 7, which is indefinite as described above, and is therefore also rejected.
Claims 14-15 depend from independent Claim 13 and are therefore also rejected.
Claims 14 and 15 recite products that are, e.g. “chicken-style”, “fish finger-like”, and “schnitzel-type” products. The use of -style, -like, and -type render the claim(s) indefinite. See MPEP 2173.05(b)(III).
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.
Claim(s) 1-3, 5-10, 12-15 are rejected under 35 U.S.C. 103 as being unpatentable over Mudgal (WO 2019/143859).
Regarding Claim 1, Mudgal teaches a plant-based product produced via high-moisture extrusion [0006]. The composition comprises at least 50% protein [0008], which encompasses the claimed range. Prior to extrusion, the product contains 40-80% moisture [0034]. Mudgal teaches that the protein may contain at least two plant-protein sources, including canola (which is the same as rapeseed) and legume proteins (such as pea and faba bean) [0029].
It would have been obvious to have selected any two of the proteins taught by, since teaches that rapeseed and legume proteins are appropriate for use in an extruded product. The selection of a known material based on its suitability for its intended use support a prima facie obviousness determination. See MPEP 2144.07
Regarding the limitation that the proteins be in a specific ratio, Mudgal teaches that the protein be in a ratio of 30:70 to 70:30, which overlaps the claimed range (Page 16, Claim 9).
Mudgal teaches that the extruder may have an exit temperature of, e.g. 150-160 °C [0035], which lies within the claimed range.
Mudgal teaches that the mixture is supplied to a cooling die after extrusion [0040]. The final water activity of the product is 0.78-0.84 [0034]. Mudgal does not provide a final moisture content in terms of percentage; however, given that Mudgal teaches the limitations of the Claim, including the initial moisture content and the temperature range(s) of the extrusion and cooling, the product of Mudgal is expected to meet the final moisture content limitation.
Regarding Claim 2, Mudgal teaches up to 25% fiber [0022], including plant-based fiber [0023].
Regarding Claim 3, Mudgal teaches that the protein may contain at least two plant-protein sources, including canola (which is the same as rapeseed) and legume proteins (such as pea and faba bean) [0029]. Mudgal teaches that two plant-based protein provide at least 80% of the total protein content [0028].
Regarding Claim 5, Mudgal teaches the use of pea or faba bean protein [0029].
Regarding Claim 6, Mudgal teaches that prior to extrusion, the product contains 40-80% moisture [0034].
Regarding Claim 7, Mudgal teaches a plant-based product produced via high-moisture extrusion [0006]. The composition comprises at least 50% protein [0008], which encompasses the claimed range. Prior to extrusion, the product contains 40-80% moisture [0034]. Mudgal teaches that the protein may contain at least two plant-protein sources, including canola (which is the same as rapeseed) and legume proteins (such as pea and faba bean) [0029].
It would have been obvious to have selected any two of the proteins taught by, since teaches that rapeseed and legume proteins are appropriate for use in an extruded product. The selection of a known material based on its suitability for its intended use support a prima facie obviousness determination. See MPEP 2144.07
Regarding the limitation that the proteins be in a specific ratio, Mudgal teaches that the protein be in a ratio of 30:70 to 70:30, which overlaps the claimed range (Page 16, Claim 9).
Regarding Claim 8, Mudgal teaches up to 25% fiber [0022], including plant-based fiber [0023].
Regarding Claim 9, Mudgal teaches that the protein may contain at least two plant-protein sources, including canola (which is the same as rapeseed) and legume proteins (such as pea and faba bean) [0029].
It would have been obvious to have selected any two of the proteins taught by Mudgal, since teaches that rapeseed and legume proteins are appropriate for use in an extruded product. The selection of a known material based on its suitability for its intended use support a prima facie obviousness determination. See MPEP 2144.07 It additionally would have been obvious to utilize the protein(s) to comprise at least 80% of the protein in the composition. Note that 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. See MPEP 2144.05 II A. Since Applicant has not disclosed that the specific limitations recited in instant claims are for any particular purpose or solve any stated problem, absent unexpected results, it would have been obvious for one of ordinary skill to discover the optimum workable ranges of the method disclosed by the prior art by normal optimization procedures known in the art.
Regarding Claim 10, Mudgal teaches that the protein comprises at least 50% of the dry blend by weight [0007], which encompasses the claimed range.
Regarding Claim 12, Mudgal teaches the use of legume proteins such as pea and faba bean [0029].
Regarding Claim 13, Mudgal teaches a meat-like product [0002]. Mudgal teaches that after formation of the product, additional components such as seasoning [0021] may be applied.
Regarding Claims 14 and 15, Mudgal teaches that the product may be a jerky [0014].
Claim(s) 4 and 11 are rejected under 35 U.S.C. 103 as being unpatentable over Mudgal in view of Anderson (US 20150296835 A1).
Regarding Claims 4 and 11, Mudgal teaches the extruded vegetable protein composition as discussed above in regards to Claims 1 and 7, but does not discuss the addition of calcium.
Anderson teaches a plant-based protein [0007] food that is extruded [0102] and has 30-70% moisture [0050]. Anderson teaches that the product comprises 0.4-1% calcium carbonate [0070]. Anderson teaches that these levels of calcium carbonate can adjust the pH of the product to mimic that of meat [0068].
Therefore, it would have been obvious to one of ordinary skill in the art before the filing date of the claimed invention to utilize calcium carbonate at the levels taught by Anderson in the composition of Mudgal. One would have been motivated to make such a modification to prepare a product with a similar pH profile to meat.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DEBORAH LIU whose telephone number is (571)270-5685. The examiner can normally be reached 12-8 Eastern Time.
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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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/D.L./ Examiner, Art Unit 1791
/Nikki H. Dees/ Supervisory Patent Examiner, Art Unit 1791