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 .
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, 2, 4-8, 10, 12, 13, 15, 17-19, 21-30, 33-36, 38 and 40-43 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.
The phrase “textured vegetable protein” in claim 1, line 1 is vague and indefinite as it is unclear what is the difference between a material that is textured and not textured as all vegetable protein appear to have a texture.
The phrase “high brewer’s spent grain powder” in claim 1, lines 3-4 is vague and indefinite as it is unclear what is the difference between “brewer’s spent grain powder” that is “high brewer’s spent grain powder” and “brewer’s spent grain powder” that is not “brewer’s spent grain powder”.
Claim 1 recites the limitation "the total weight" in line 5. There is insufficient antecedent basis for this limitation in the claim. Applicant is advised to consider stating "a total weight".
Claim 2 recites the limitation "water" in line 2. There is insufficient antecedent basis for this limitation in the claim. Applicant is advised to consider stating "the water".
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 2 recites the broad recitation “at least 50%”, and the claim also recites “at least 55%” and “at least 60%” 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.
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 2 recites the broad recitation “at least 5%”, and the claim also recites “at least 8%” 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.
Claim 4 recites the limitation "water" in line 3. There is insufficient antecedent basis for this limitation in the claim. Applicant is advised to consider stating "the water".
Claim 5 recites the limitation "a total protein content" in line 2. There is insufficient antecedent basis for this limitation in the claim. Applicant is advised to consider stating "the total protein content".
Claim 6 recites the limitation "a total protein content" in line 2. There is insufficient antecedent basis for this limitation in the claim. Applicant is advised to consider stating "the total protein content".
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 8 recites the broad recitation “20 to 90%”, and the claim also recites “40 to 90%” 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.
Claim 8 recites the limitation "the total weight" in line 3. There is insufficient antecedent basis for this limitation in the claim. Applicant is advised to consider stating "a total weight".
The phrase “preferably … blend” in Claim 8, lines 3-6 is vague and indefinite as it is unclear whether anything is required. Applicant is advised to consider cancelling this phrase.
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 8 recites the broad recitation “55 to 90%”, and the claim also recites “60 to 85%” and “75 to 85%” 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.
Claim 10 recites the limitation “high brewer’s spent grain powder” in line 2. There is insufficient antecedent basis for this limitation in the claim. Applicant is advised to consider stating “the high brewer’s spent grain powder”.
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 10 recites the broad recitation “10 to 80%”, and the claim also recites “10 to 60%” 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.
Claim 10 recites the limitation "the total weight" in line 3. There is insufficient antecedent basis for this limitation in the claim. Applicant is advised to consider stating "a total weight".
The phrase “preferably … blend” in Claim 10, lines 4-6 is vague and indefinite as it is unclear whether anything is required. Applicant is advised to consider cancelling this phrase.
The phrase “preferably … blend” in Claim 12, line 3 is vague and indefinite as it is unclear whether anything is required. Applicant is advised to consider cancelling this phrase.
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 12 recites the broad recitation “beans, peas, chickpeas, lupins, lentils and peanuts”, and the claim also recites “beans and/or peas” 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.
Claim 13 recites the limitation “soy bean” in line 2. There is insufficient antecedent basis for this limitation in the claim. Applicant is advised to consider stating “the soy bean”.
Claim 13 recites the limitation “pea protein” in line 2. There is insufficient antecedent basis for this limitation in the claim. Applicant is advised to consider stating “the pea protein”.
The phrase “preferably … isolate” in Claim 13, lines 2-4 is vague and indefinite as it is unclear whether anything is required. Applicant is advised to consider cancelling this phrase.
The phrase “vital wheat gluten” in Claim 15, line 2 is vague and indefinite as it is unclear what is the difference what gluten and wheat gluten that is not.
The phrase “preferably … blend” in Claim 15, lines 2-4 is vague and indefinite as it is unclear whether anything is required. Applicant is advised to consider cancelling this phrase.
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 15 recites the broad recitation “up to 40%”, and the claim also recites “10 to 40%” and “10 to 30%” 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.
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 17 recites the broad recitation “at least 0.7”, and the claim also recites “at least 0.8” and “at least 0.9” 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.
The term “low” in claim 19, line 2 is a relative term which renders the claim indefinite. The term “low” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. A person having ordinary skill in the art may interpret a moisture as low while another may interpret the same moisture as not low.
The phrase “preferably … extruder” in Claim 19, lines 2-3 is vague and indefinite as it is unclear whether anything is required. Applicant is advised to consider cancelling this phrase.
The term “high” in claim 21, line 2 is a relative term which renders the claim indefinite. The term “high” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. A person having ordinary skill in the art may interpret a temperature as high while another may interpret the same temperature as not high.
Claim 22 recites the limitation "water" in line 3. There is insufficient antecedent basis for this limitation in the claim. Applicant is advised to consider stating "the water".
Claim 22 recites the limitation "the proteins" in lines 4-5. There is insufficient antecedent basis for this limitation in the claim. Applicant is advised to consider earlier stating "proteins".
Claim 24 recites the limitation "steps a) and b)" in line 1. There is insufficient antecedent basis for this limitation in the claim. Applicant is advised to consider stating "the steps a) and b)".
Claim 25 recites the limitation "step a) " in line 2. There is insufficient antecedent basis for this limitation in the claim. Applicant is advised to consider stating "the step a)".
Claim 25 recites the limitation "steps b) and/or c)" in line 2. There is insufficient antecedent basis for this limitation in the claim. Applicant is advised to consider stating "the steps b) and/or c)".
Claim 26 recites the limitation "water" in line 4. There is insufficient antecedent basis for this limitation in the claim. Applicant is advised to consider stating "the water".
The phrase “textured vegetable protein” in claim 27, line 1 is vague and indefinite as it is unclear what is the difference between a material that is textured and not textured as all vegetable protein appear to have a texture.
Claim 27 recites the limitation "the total weight" in line 4. There is insufficient antecedent basis for this limitation in the claim. Applicant is advised to consider stating "a total weight".
Claim 28 recites the limitation "a total protein content" in line 2. There is insufficient antecedent basis for this limitation in the claim. Applicant is advised to consider stating "the total protein content".
Claim 29 recites the limitation "a process" in line 1. There is insufficient antecedent basis for this limitation in the claim. Applicant is advised to consider stating "the process".
Claim 30 recites the limitation "a total protein content" in line 2. There is insufficient antecedent basis for this limitation in the claim. Applicant is advised to consider stating "the total protein content".
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 30 recites the broad recitation “at least 50%”, and the claim also recites “at least 55%” and “at least 60%” 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.
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 30 recites the broad recitation “at least 5%”, and the claim also recites “at least 8%” 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.
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 34 recites the broad recitation “40 to 80%”, and the claim also recites “60 to 80%” 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.
The phrase “consisting of … and/or … and/or … and/or …” in claim 38, lines 3-4 is rejected as being an improper Markush group. Please consider writing as “consisting of … and … and … and …”.
The phrase “and/or … analogue” in calm 38, lines 4-5 is vague and indefinite as it is unclear whether this is referring to the ingredients or something else.
The phrase “consisting of … and/or … and/or … and/or …” in claim 40, lines 5-6 is rejected as being an improper Markush group. Please consider writing as “consisting of … and … and … and …”.
The phrase “consisting of … and/or … and/or … and/or …” in claim 41, lines 3-4 is rejected as being an improper Markush group. Please consider writing as “consisting of … and … and … and …”.
Claim 42 recites the limitation "a meat analogue" in line 1. There is insufficient antecedent basis for this limitation in the claim. Applicant is advised to consider stating "the meat analogue".
The phrase “consisting of … and/or …” in claim 43, line 3 is rejected as being an improper Markush group. Please consider writing as “consisting of … and”.
Clarification and/or correction required.
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.
Claim(s) 1, 2, 4-8, 10, 12, 13, 15, 17-19, 21-30, 33-36, 38 and 40-43 is/are rejected under 35 U.S.C. 103 as being unpatentable over Wooton (WO 2018/050863) in view of Mackay et al. (US 2018/0014555).
The “textured vegetable protein” is interpreted as encompassing all plant protein as all plant protein is interpreted to having a texture to at least a minimal extent.
The “meat analogue” language is interpreted as including any plant material, like beans and legumes, that has protein that can be used in place of protein from animals.
Wooton (‘863) teaches a textured vegetable protein, hydrated vegetable protein and meat analogue and a process for preparing a textured vegetable protein, wherein the process comprises extruding a mixture comprising a protein blend and water to produce a textured vegetable protein, wherein the protein blend comprises legume-derived protein and high protein brewer's spent grain powder, and wherein the high protein brewer's spent grain powder has a total protein content (% dry matter by weight) of at least 25% based on the total weight of the high protein brewer's spent grain powder (See page 12, para. 64, claims 1, 3, 6 and Table 7, at least 30% protein.),
PNG
media_image1.png
214
706
media_image1.png
Greyscale
PNG
media_image2.png
642
442
media_image2.png
Greyscale
however, fails to expressly disclose the protein being textured the various amounts and types of ingredients and the food prepared.
Wooton (‘863) teaches using textured protein products like wheat, soy, lupin and vegetables (See para. 64.). It would have been foreseeable and obvious prior to the earliest effective filing date that all extruded protein-based materials have a texture, especially since Wooton’s (‘863) raw materials are textured (See para. 64.).
Furthermore, Mackay (‘555) teaches making similar textured extruded products like Wooton (‘863) by using brewer's spent-grain based protein powder for producing protein-enhanced foodstuff as brewer's spent-grain based protein powders have low phytic acid content with a high Protein Digestibility Corrected Amino Acid Score and retention of significant antioxidant properties, wherein, the brewer's spent-grain based protein powders are highly soluble and thus are easily wetable, readily dispersable and blendable in concentrations of up to 50% by weight (See Abs. and paras. 20, 21.); wherein the brewer's spent-grain based protein powder possesses naturally high levels of glutamine and other branched chain amino acids; wherein the amino acid score for the brewer's spent-grain based protein powder is 0.7 (typically 0.4 to 0.5 for grains) and is generally limited by the lowest essential amino acid, which in the brewer's spent-grain based protein powder is lysine; wherein the brewer's spent-grain based protein powder can include supplemental amounts of pure lysine or other complimentary proteins having an excess of lysine such as legume proteins (pea, soy, chickpea, cowpea, etc. . . . ) (See paras. 20-21.); wherein the protein-enhanced foodstuff can comprise meat substitutes including, for example, meat and meat binder replacements and extruded meat substitutes (See para. 27.).
The brewer's spent-grain based protein powder possesses beneficial sensory characteristics including light color and mild flavor that allow the brewer's spent-grain based protein powder to be used alone or as a protein value enhancer within foods intended for human consumption, companion pet foods and in commercial livestock feeds.
Applicant does not set forth any non-obvious unexpected results for providing any amount and ingredient claimed. It would have been foreseeable and obvious prior to the earliest effective filing date with Wooton (‘863) and Mackay (‘555) before them to adjust the amounts and ingredients to provide a textured plant-based food product that satisfies the preference of a consumer. The selection of amounts and types of ingredients to add would have been within the skill set of a person having ordinary skill in the art.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to BRENT T O'HERN whose telephone number is (571)272-6385. The examiner can normally be reached M-Th 5:00 am - 3:30 pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Emily Le can be reached at 571-272-0903. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/BRENT T O'HERN/ Primary Examiner, Art Unit 1793 January 21, 2026