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 amendment filed 5/12/2026 has been entered. Claims 1-20 are pending. Prior objections and rejections not included below are withdrawn in view of Applicant’s arguments and amendments.
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, 18, 19, and 20 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 Mudgal, since Mudgal 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 supports 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 and 18, Mudgal teaches that prior to extrusion, the product contains 40-80% moisture [0034].
Regarding Claim 7 and 19, 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 Mudgal, since Mudgal 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 supports 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].
Regarding Claim 20, Mudgal teaches the composition as discussed above in regards to Claim 7, but does not discuss the firmness. However, given that Mudgal teaches the limitations of Claim 7, the composition of Mudgal is interpreted to have the firmness properties as claimed.
As stated in In re Best, 562 F.2d 1252, 1255 (CCPA 1977): Where, as here, the claimed and prior art products are identical or substantially identical, or are produced by identical or substantially identical processes, the PTO can require an applicant to prove that the prior art products do not necessarily or inherently possess the characteristics of his claimed product. [citation omitted] Whether the rejection is based on "inherency" under 35 U.S.C. § 102, on “prima facie obviousness” under 35 U.S.C. § 103, jointly or alternatively, the burden of proof is the same, and its fairness is evidenced by the PTO’s inability to manufacture products or to obtain and compare prior art products. See MPEP 2122.01 I.
Claims 4, 11, 16, and 17 are rejected under 35 U.S.C. 103 as being unpatentable over Mudgal in view of Anderson (US 20150296835 A1).
Regarding Claims 4, 11, 16, and 17, Mudgal teaches the extruded vegetable protein composition as discussed above in regard 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 have utilized 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.
Response to Arguments
Applicant’s arguments filed 5/12/2026 have been fully considered but they are not persuasive.
Regarding rejections under 35 U.S.C. 103, Applicant argues (Pages 9-10 of arguments) that Mudgal teaches away from a single legume-derived protein. Applicant argues that Mudgal consistently teaches using at least two legume-derived proteins, and does not teach an embodiment with a single legume protein. Applicant further argues that Mudgal’s examples do not provide any motivation for utilizing canola protein.
This argument is not convincing. Where Mudgal teaches the use of “at least two plant-based protein sources” including canola and pea protein, and additionally teaches “any combination thereof” of proteins [0029], it would have been obvious to have utilized canola and pea protein. Regarding Applicant’s arguments that Mudgal’s examples teach away from utilizing a single legume-derived protein and do not provide motivation for utilizing canola protein, note that prior art is available for all teachings and not only preferred embodiments. See MPEP 2123.
Applicant additionally argues that Mudgal does not meet the final moisture limitation, given that Mudgal teaches a jerky-like product and teaches drying to a water activity of 0.78-0.84.
This argument is not convincing. Mudgral teaches the general preparation of meat-like products utilizing a plant-based protein source [0014]. Note that prior art is available for all teachings and not only preferred embodiments. See MPEP 2123.
Applicant additionally argues that the broader prior art does not recognize rapeseed protein as suitable for high-moisture extrusion. Applicant cites Brugger (which teaches that acceptable texture was not achieved in high moisture extrusion with rapeseed protein), Vatansever (which does not list rapeseed protein as suitable for co-extrusion), Commes (which does not include rapeseed or canola protein as a protein source for plant protein snacks), and Sarrinen (which teaches that 52-60 wt% of water in a fava bean/pea protein coextrusion improves structure).
This argument is not convincing. Mudgal teaches the use of canola protein in a high-moisture extrusion application according to the Claim.
Applicant additionally argues that the claimed ratio only partially overlaps with Mudgal.
This argument is not convincing. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. See MPEP 2144.05 I.
Applicant additionally argues that the “routine optimization” reasoning regarding Claims 9 and 10 is legally insufficient, since the Office has not provided sufficient incentive to vary the combination of proteins, their ratio, and their concentrations.
This argument is not convincing. First, the combination of proteins, their ratio, and their concentration is made obvious by the disclosure of Mudgal, as discussed above. Second, regarding the concentration of protein, it is known in the art that different proteins provide different properties e.g. flavor and texture. Additionally, where Mudgal teaches the effects of different proteins e.g. nutritional content [0030], 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.
Applicant additionally argues that the claimed combination provides unexpected results. Applicant argues that samples including canola protein retain firmness and fibrousness at high moisture levels, and have improved freeze-thaw stability.
This argument is not convincing. First, note that the Examples of the instant Specification do not provide a comparison against two proteins, wherein one of the protein is not rapeseed protein, nor do the Examples provide a comparison against a combination of rapeseed and legume protein wherein the ratio of proteins lies outside the range. Applicant has therefore not provided a comparative showing for criticality. The arguments of counsel cannot take the place of evidence in the record. See MPEP 716.01(c)II. Second, note that recognition of latent properties in the prior art does not render nonobvious an otherwise known invention. See MPEP 2145 II.
Applicant additionally argues that Anderson’s use of calcium is as a nutritional supplement and pH adjusting agent, not as a means to improve texture or processing stability.
This argument is not convincing. The motivation to add calcium is not required to be the same as that of the instant Application. See MPEP 2144 IV.
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 DEBORAH LIU whose telephone number is (571)270-5685. The examiner can normally be reached 12-8 Eastern Time.
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/D.L./
Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791
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