DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
The status of the claims stands as follows:
Pending claims: 1-17
Withdrawn claims: 9-17
Cancelled claims: None
Claims currently under consideration: 1-8
Currently rejected claims: 1-8
Allowed claims: None
Election/Restrictions
Applicant's election with traverse of Group I, Species A in the reply filed on 04/17/2026 is acknowledged. The traversal is on the ground(s) that restriction is improper as the Office has not provided an appropriate explanation of separate classification of claims and has not cited any evidence showing that the present claims have achieved a separate status in the art; therefore, the Office has not shown a requisite search burden.
This is not found persuasive because the restriction was not based on there being a serious search burden. Instead, the restriction was based on a lack of unity of invention due to the technical feature shared between the restricted groups not being a special technical feature in view of the Catani reference (see paragraphs 11-12 of the Restriction Requirement filed 02/19/2026). Furthermore, Species A and Species B of Group I require a non-animal protein food product (i.e., a product not containing animal protein) and a cultured meat food product (i.e., a product containing animal protein), respectively, which are mutually exclusive food products.
The requirement is still deemed proper and is therefore made FINAL.
Claims 9-17 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected Groups II-V, there being no allowable generic or linking claim.
Applicant is reminded that upon the cancelation of claims to a non-elected invention, the inventorship must be corrected in compliance with 37 CFR 1.48(a) if one or more of the currently named inventors is no longer an inventor of at least one claim remaining in the application. A request to correct inventorship under 37 CFR 1.48(a) must be accompanied by an application data sheet in accordance with 37 CFR 1.76 that identifies each inventor by his or her legal name and by the processing fee required under 37 CFR 1.17(i).
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Claim Objections
Claims 1, 5, and 8 are objected to because of the following informalities:
In claim 1, “A method for preparing a non-animal protein food product or a cultured meat food product comprising adding” should be read as “A method for preparing a non-animal protein food product comprising adding”.
In claim 1, “ingredient composition into a non-animal protein food product or a cultured meat food product” should be read as “ingredient composition into a non-animal protein food product”.
In claim 5, “Kluyveromyces” should be read as “Kluyveromyces”.
In claim 5, “Kluyveromyces lactis” should be read as “Kluyveromyces lactis”.
In claim 8, “wherein said non-animal protein food product or said cultured meat food product is a meat-alternative” should be read as “wherein said non-animal protein food product is a meat-alternative”.
Appropriate correction is required.
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.
Claim 3 is rejected under 35 U.S.C. 112(b) 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 3 recites that the method further comprises heating to at least 45 degrees Celsius. However, it is unclear as to what component is being heated (e.g., the lactase protein preparation, the ingredient, the non-animal protein food product). Therefore, the claim is indefinite.
For the purpose of this examination, the claim will be interpreted as meaning that the non-animal food product is heated.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1 and 4-8 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Nurmi (US 2020/0029590).
Regarding claims 1 and 8, Nurmi teaches a method for preparing a non-animal food product, wherein the method may comprise the steps of: adding a lactase protein preparation to ingredients used in the preparation of the food product (corresponding to plant based protein concentrate and hydrocolloid); and processing an obtained lactase protein preparation and ingredient composition into a non-animal protein food product as recited in present claim 1 [0038]-[0049], [0120]. Nurmi teaches that the non-animal food product may be a meat alternative food product as recited in present claim 8 [0125].
Regarding claim 4, Nurmi teaches the invention as described above in claim 1, including the food product does not comprise egg protein [0038]-[0049].
Regarding claim 5, Nurmi teaches the invention as described above in claim 1, including the lactase protein preparation may comprise lactase from Kluyveromyces fragilis and/or Kluyveromyces lactis [0120]. Therefore, Nurmi teaches that the lactase protein preparation comprises a native lactase protein, a yeast lactase protein, a Kluyveromyces lactase protein, and/or a Kluyveromyces lactis lactase protein as recited in present claim 5.
Regarding claims 6 and 7, Nurmi teaches the invention as described above in claim 1, including the non-animal protein food product comprises a plant based protein concentrate and a protein linking enzyme [0039]-[0041]. Nurmi teaches that the plant based protein concentrate may be plant protein (corresponding to protein from wheat, oat, soy, potato, lupine, flax, hemp, corn, barley, rye, pea, and bean) and/or algal protein (corresponding to protein from spirulina) as recited in present claim 6 [0108]. Nurmi teaches that the protein linking enzyme may be derived from a fungus [0118]. Since enzymes are proteins, Nurmi teaches that the food product comprises fungal protein as recited in present claims 6 and 7.
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.
Claims 2 and 3 are rejected under 35 U.S.C. 103 as being unpatentable over Nurmi (US 2020/0029590) as applied to claim 1 above.
Regarding claims 2 and 3, Nurmi teaches the invention as described above in claim 1, including that the method may further comprise heating, frying, grilling or cooking the non-animal protein food product [0136]. It is known in the art that heating, frying, grilling, and cooking comprise using temperatures of greater than room temperature which provides a temperature range that at least overlaps the temperature range of 45°C recited in present claims 2 and 3. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention 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.I.
In regard to the lactase protein preparation providing binding properties to the food product when heated to at least 45°C as recited in present claim 2, since Nurmi teaches the method as recited in present claim 1, it would be obvious for the method of Nurmi to encompass embodiments wherein the lactase protein preparation provides the claimed binding properties. Further, the Office does not have laboratory facilities to test claim limitations drawn toward results of practicing the method as claimed. Accordingly, such binding properties do not serve to distinguish the product as claimed from the prior art and are thus considered obvious to one having ordinary skill in the art. Therefore, the features of present claim 2 are rendered obvious.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Kelly Kershaw whose telephone number is (571)272-2847. The examiner can normally be reached Monday - Thursday 9:00 am - 4:00 pm.
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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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/KELLY P KERSHAW/Examiner, Art Unit 1791
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