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 Figures 8-16 lack a label on the x-axis, for comparison, figures 5, 6, and 7 are labeled “Score” on the x-axis. 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 1-6, 8-10, 12, 15, 19, 21, 25-26, 34-35, and 37-38 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.
The term “food-like” in claim 1, 34, and 35 is a relative term which renders the claim indefinite. The term “food-like” 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. For the purposes of examination, the term food-like will be interpreted to mean a smell reminiscent of meat products.
Due to their dependency on claims 1, 34, and 35 respectively, claims 2-6, 8-10, 12, 15, 19, 21, 25-26, 37, and 38 are rejected as indefinite.
With respect to Claim 6, 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 instant claim, the recitation of “at least about 10%, at least about 15%, or at least about 20%” constitutes a narrowing statement of the range/limitation. The claim is 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 Rejections - 35 USC § 102
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 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 1-6, 8-10, 12, 15, 19, 21, 26, and 32 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Stressler et al. (Production of Polyunsaturated Fatty Acids by Mortierella alpina Using Submerse and Solid State Fermentation, Chemie Ingenieur Technik).
With respect to Claim 1, Stressler et al. teaches a study of the cultivation of Mortierella organisms in glucose-based mediums with amino acids, with a specific interest in the fatty acid content of the resulting composition. [Abstract] In a specific embodiment, Stressler et al. teaches a composition comprising glucose, sodium glutamate, and Mortierella alpina. [Pg. 319, Sec. 2.2] The amount of Mortierella alpina present is recorded as dry cell weight, or DCW, and the resulting culture was about 23 g/L, or about 2.3%, M. alpina. [Table 1]
Additionally, Stressler et al. teaches adding 45mL of the aforementioned culture to an oat bran and water substrate, which reads on a food product. [Pg. 319, Sec. 2.4] The substrate has a total weight of 1350g, split into 5 tablets, equating to 270g per tablet. [Pg. 319, Sec. 2.4] 45 mL of the culture at 23g/L of DCW Mortierella alpina, is about 1.035g, into a 270g tablet, is about 0.4% Mortierella alpina in the total composition, which falls within the range recited of less than 2.5% biomass by weight.
The recitation of “capable of producing a food-like aroma and/or flavor when heated” is interpreted as an inherent property of the composition and not a functional limitation recited in the preamble. MPEP 2112.01 I states, “Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established”.
The composition taught by Stressler et al. above comprises Mortierella spp. biomass comprising phospholipids, sugar in the form of glucose, and an amino acid salt in the form of sodium glutamate, wherein the composition is a food product comprising less than 2.5% dry Mortierella by weight. This reads on all the limitations recited in claim 1. Therefore, the composition taught by Stressler et al. would also possess the same inherent property of being capable of producing a food-like aroma and/or flavor when heated.
Therefore, Stressler et al. anticipates the composition recited in claim 1.
With respect to Claim 2, Stressler et al. teaches a composition comprising 45 mL of a Mortierella alpina culture, comprising 23g/L of DCW, [Table 1] to an oat bran and water substrate. [Pg. 319, Sec. 2.4] The substrate has a total weight of 1350g, split into 5 tablets, equating to 270g per tablet. [Pg. 319, Sec. 2.4] The resulting composition comprises about 1.035g M. alpina, into a 270g tablet, is about 0.4% Mortierella alpina in the total composition, greater than about 0.005% Mortierella spp. biomass by weight of the composition excluding the Mortierella spp.
With respect to Claim 3, The recitation of “wherein the food-like aroma and/or flavor is a meaty aroma and/or flavor” is interpreted as an inherent property of the composition. MPEP 2112.01 I states, “Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established”. Therefore, the composition taught by Stressler et al. above anticipates claim 3.
With respect to Claims 4-6, Stressler et al. teaches the composition comprises 19% arachidonic acid, an esterified ω6 fatty acid. [Table 1]
With respect to Claims 8-10, Stressler et al. teaches a preculture comprising sodium glutamate and 50g/L glucose, incorporated at 20%, resulting in about 55mmol/L in the composition. [Pg. 319, Sec. 2.2] The recitation of “in amounts sufficient to produce one or more volatile compounds selected from […] when the composition is heated” is interpreted as an inherent property of the composition. MPEP 2112.01 I states, “Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established”.
The composition of Stressler et al. anticipates the invention recited in claim 1, and would therefore possess the same property of being able to produce the volatile compounds recited in claims 8 and 9 respectively, when heated. Therefore, Stressler et al. anticipates the invention recited in claims 8-10.
With respect to Claims 12, 15, 19, and 21, Stressler et al. teaches a composition comprising sodium glutamate, glucose, and iron sulfate, but does not comprise a yeast extract. [Pg. 319, Sec. 2.2]
With respect to Claim 26, Stressler et al. teaches the lipid in the composition are extracted from Mortierella spp. in the form of arachidonic acid. [Table 1]
With respect to Claim 32, Stressler et al. teaches a study of the cultivation of Mortierella organisms in glucose-based mediums with amino acids, with a specific interest in the fatty acid content of the resulting composition. [Abstract] In a specific embodiment, Stressler et al. teaches a composition comprising glucose, sodium glutamate, and Mortierella alpina.[Pg. 319, Sec. 2.2]
Additionally, Stressler et al. teaches adding 45mL of the aforementioned culture to an oat bran and water substrate, which reads on a food product. [Pg. 319, Sec. 2.4] The substrate has a total weight of 1350g, split into 5 tablets, equating to 270g per tablet. [Pg. 319, Sec. 2.4] 45 mL of the culture comprising 23g/L DCW Mortierella alpina, [Table 1] is about 1.035g, into a 270g tablet, is about 0.4% Mortierella alpina in the total composition, which falls within the range recited of less than 2.5% biomass by weight. Therefore, Stressler et al. anticipates the invention recited in claim 32.
With respect to Claim 34, Stressler et al. teaches a study of the cultivation of Mortierella organisms in glucose-based mediums with amino acids, with a specific interest in the fatty acid content of the resulting composition. [Abstract] In a specific embodiment, Stressler et al. teaches a composition comprising glucose, sodium glutamate, and Mortierella alpina. [Pg. 319, Sec. 2.2]
Additionally, Stressler et al. teaches adding 45mL of the aforementioned culture to an oat bran and water substrate, which reads on a food product. [Pg. 319, Sec. 2.4] The substrate has a total weight of 1350g, split into 5 tablets, equating to 270g per tablet. [Pg. 319, Sec. 2.4] 45 mL of the culture comprising 23g/L DCW Mortierella alpina, [Table 1] is about 1.035g, into a 270g tablet, is about 0.4% Mortierella alpina in the total composition, which falls within the range recited of less than 2.5% biomass by weight.
The method of applying the composition taught by Stressler et al. to a food product, the composition comprising less than 2.5% Mortierella spp. Biomass comprising phospholipids, sugar in the form of glucose, and an amino acid salt in the form of sodium glutamate, reads on all the limitations recited in the instant claim. MPEP 2112.01 I states, “Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established”.
Therefore, the composition taught by Stressler et al. would also possess the same inherent property of being capable of producing a food-like aroma and/or flavor when heated.
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.
Claims 25, 34-35, and 37-38 are rejected under 35 U.S.C. 103 as being unpatentable over Stressler et al. (Production of Polyunsaturated Fatty Acids by Mortierella alpina Using Submerse and Solid State Fermentation, Chemie Ingenieur Technik) as applied to Claim 1, in view of Vrljic (US 2015/0305390 A1).
With respect to Claim 25, Stressler et al. anticipates the invention recited in claim 1. Stressler et al. also teaches the use yeast extract in the composition, but lieu of amino acids or salts thereof. [Pg. 319, Sec. 2.2] MPEP 2144.06 I, states, “It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose”. Therefore, it would have been obvious to devise a composition comprising yeast extract, sodium glutamate, glucose, and an aqueous component.
Stressler et al. is silent to the use of cysteine and thiamine.
Vrljic et al. teaches a consumable product designed to mimic animal products through the use of non-animal products and methods for making the same. [0015] Vrljic et al. teaches the use of fatty acids derived from Mortierella for use in the composition. [0184] Additionally, Vrljic et al. teaches a flavor precursor mix comprising cysteine, thiamine, glucose, ribose, glutamic acid, and more. [Table 5]
Stressler et al. and Vrljic et al. exist within the same field of endeavor in that they teach compositions comprising fatty acids derived from Mortierella spp. Where Stressler et al. teaches a method of cultivating and extracting fatty acids from Mortierella, Vrljic et al. teaches edible food product compositions comprising fatty acids from Mortierella and components of the compositions.
A composition comprising the invention recited in Stressler et al. in combination with the flavor precursor mix taught in Vrljic et al. teaches a composition comprising all the limitations recited in claim 25. Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the teaching of Stressler et al. in view of Vrljic et al. to devise a composition comprising Mortierella spp. biomass comprising phospholipids, glucose, cysteine, yeast extract, a salt of glutamic acid in the form of sodium glutamate, thiamine, and an aqueous component, thereby rendering claim 25 obvious.
With respect to Claim 34, Stressler et al. teaches a study of the cultivation of Mortierella organisms in glucose-based mediums with amino acids, with a specific interest in the fatty acid content of the resulting composition. [Abstract] In a specific embodiment, Stressler et al. teaches a composition comprising glucose, sodium glutamate, and Mortierella alpina, [Pg. 319, Sec. 2.2] wherein the resulting culture was about 23 g/L, or about 2.3%, M. alpina. [Table 1] Additionally, Stressler et al. teaches adding 45mL of the aforementioned culture to an oat bran and water substrate, which reads on a food product. [Pg. 319, Sec. 2.4]
Stressler et al. is silent to a method of heating the composition.
Vrljic et al. teaches a consumable product designed to mimic animal products through the use of non-animal products and methods for making the same. [0015] Vrljic et al. teaches the use of fatty acids derived from Mortierella for use in the composition. [0184] Additionally, Vrljic et al. teaches a range of optimum temperature for releasing fat from adipose replications, which range from 23-301°C. [0196] This reads disclosure reads on heating the good product.
Stressler et al. and Vrljic et al. exist within the same field of endeavor in that they teach compositions comprising fatty acids derived from Mortierella spp. Where Stressler et al. teaches a method of cultivating and extracting fatty acids from Mortierella, Vrljic et al. teaches edible food product compositions comprising fatty acids from Mortierella and components of the compositions.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the teaching of Stressler et al. in view of Vrljic et al. to device a method of imparting a food-like aroma onto a food product comprising the steps of contacting a food product with Mortierella spp. biomass comprising phospholipids, glucose, and sodium glutamate, and heating the product, wherein the heated food product comprises less than 2.5% Mortierella spp. biomass, thereby rendering claim 34 obvious.
With respect to Claim 37, Stressler et al. in view of Vrljic et al. teaches the invention recited in claim 34, as described above. Additionally, the range of temperatures used to heat food products taught in Vrljic et al. [0196] overlaps with the range recited in the instant claim. MPEP 2144.05 I states, “In the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists”. Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to use the teaching of Stressler et al. in view of Vrljic et al. in order to produce the invention recited in claim 34, wherein the temperature to which the composition is heated is to at least 130°C, thereby rendering claim 37 obvious.
With respect to Claim 35, Stressler et al. teaches a study of the cultivation of Mortierella organisms in glucose-based mediums with amino acids, with a specific interest in the fatty acid content of the resulting composition. [Abstract] In a specific embodiment, Stressler et al. teaches a composition comprising glucose, sodium glutamate, and Mortierella alpina, [Pg. 319, Sec. 2.2] wherein the resulting culture was about 23 g/L, or about 2.3%, M. alpina. [Table 1] Additionally, Stressler et al. teaches adding 45mL of the aforementioned culture to an oat bran and water substrate, which reads on a food product. [Pg. 319, Sec. 2.4]
Stressler et al. is silent to a method of heating the composition.
Vrljic et al. teaches a consumable product designed to mimic animal products through the use of non-animal products and methods for making the same. [0015] Vrljic et al. teaches the use of fatty acids derived from Mortierella for use in the composition. [0184] Additionally, Vrljic et al. teaches a range of optimum temperature for releasing fat from adipose replications, which range from 23-301°C. [0196] The disclosure of optimal temperature to which to heat the composition reads on heating the food product.
Stressler et al. and Vrljic et al. exist within the same field of endeavor in that they teach compositions comprising fatty acids derived from Mortierella spp. Where Stressler et al. teaches a method of cultivating and extracting fatty acids from Mortierella, Vrljic et al. teaches edible food product compositions comprising fatty acids from Mortierella and components of the compositions.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the teaching of Stressler et al. in view of Vrljic et al. to device a method of imparting a food-like aroma onto a food product comprising the steps of heating a product comprising Mortierella spp. biomass comprising phospholipids, glucose, and sodium glutamate, and subsequently contacting a food product with the resulting composition, thereby rendering claim 35 obvious.
With respect to Claim 38, Stressler et al. in view of Vrljic et al. teaches the invention recited in claim 35, as described above. Additionally, the range of temperatures between 23-301°C that is used to heat food products taught in Vrljic et al. [0196] overlaps with the range recited in the instant claim. MPEP 2144.05 I states, “In the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists”. Both are silent to the time for which a composition will be heated.
The recitation of “for at least 1 hour” is considered the results of routine optimization. MPEP 2144.05 II states, “[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation”. It would have been obvious to optimize the amount of time one is heating the food composition in order to control for the organoleptic properties of the composition.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to use the teaching of Stressler et al. in view of Vrljic et al. in order to produce the invention recited in claim 35, wherein the temperature to which the composition is heated is to at least 130°C and for at least 1 hour, thereby rendering claim 38 obvious.
Conclusion
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/J.C.M./Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791
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