DETAILED ACTION
Background
The preliminary amendment dated May 07, 2024 (amendment) adding claims 26-44 and canceling claims 1-25 has been entered. Claims 26-44 as filed with the amendment have been examined.
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 Objections
3. Claim 42 is objected to because of the following informalities:
In claim 42, at line 2 before “press cake” delete [[of the ]].
Appropriate correction is required.
Claim Rejections - 35 USC § 112
4. 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.
5. Claims 26-44 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.
In claim 26, at line 5 the recited ratio of press cake to water is indefinite for lacking units. Is the recited ratio a weight ratio, a volume ratio or a ratio based in some other unit of measure?
The Office interprets the ratio of press cake to water as a weight ratio.
Regarding instant claims 26, 28 and 30, in claim 26, at line 9 the term “seed types” is indefinite; in claim 28, at line 1 the term “seed types” is indefinite; and, in claim 30, at line 1 the term “seed types” is indefinite. The addition of the word "type" to an otherwise definite expression extends the scope of the expression so as to render it indefinite. Ex parte Copenhaver, 109 USPQ 118 (Bd. Pat. App. & Inter. 1955). See MPEP 2173.05(b).III.E.
The Office interprets the term “seed types” as referring to seeds.
6. Each of claims 33, 34 and 35 recites the limitation "meat replacement product" in line 1. There is insufficient antecedent basis for this limitation in the claim. The claims and their antecedent claim 26 do not recite a meat replacement product.
The Office interprets the term meat replacement product as meaning a meat-alternative product.
In claim 35, at line 1 the recited amount of 25% or more of one or more seeds in a press cake is indefinite for lacking units. Is the recited amount a weight %, a volume % or a % of some other unit of measure?
The Office interprets the recited % of seeds as a weight %.
Claims 30 and 39, in lines 1-2 each recite the limitation "wherein the” oil seeds “further comprise sunflower seeds”. There is insufficient antecedent basis for this limitation in the claims. Claim 26, from which claim 30 depends recites a press cake from any oilseed without limit, including sunflower seeds. Claim 36, from which claim 39 depends recites obtaining a press cake from any oil producing seed without limit, including sunflower seeds. How is the recited sunflower seed in claims 30 and 39 a “further” oil seed excluded from the scope of claims 26 and 36?
Claim 36 reciting extruding a mixture wherein “more than 40% w/w of water is added” is indefinite as the claim does not provide a clear basis or denominator for the amount of water. Is the amount of water based on the total weight of the recited mixture, the total weight of the meat-alternative product, the total weight of dry materials or solids in the mixture, or some other basis for weight %?
Claim 42 reciting a yeast that comprises a portion of the press cake is indefinite as confusing because yeast is not an oil seed; and the claimed amount of “5-30% w/w of the press cake” is not a clear basis or denominator for the amount of yeast. Is the amount of yeast based on the total weight of the press cake, the total weight of the meat-alternative product, the total weight of dry materials or solids in the meat-alternative product, the total weight of yeast plus press cake, or some other basis for weight %?
The Office interprets the claim as reciting an amount of yeast, based on the total weight of the press cake.
Claim 44 reciting “pre-cooking” the extruded meat-alternative product is indefinite as confusing. How can one pre-cook an extruded product that did not exist before it was extruded?
The Office interprets the claim as reciting a product that is cooked prior to eating it or prior to its use in food.
Claims 27, 29, 31-32, 37-38, 40-41 and 43 are rejected as depending from a rejected base claim.
Claim Rejections - 35 USC § 103
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 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 26-28, 32-37 and 43 are rejected under 35 U.S.C. 103 as being unpatentable over WO2021/165973 A1 to Toubia et al. (Toubia) in view of US2022/0000140 to Wakeland-Rosen et al. (Wakeland).
Unless otherwise disclosed, the Office interprets all %s as weight %s and all ratios as weight ratios and, further, interprets weight and mass as interchangeable.
The Office interprets the recited “essentially devoid of wheat, nuts and/or soy” in claim 26 as including any composition that lacks any one or more of wheat, nuts and soy. Further, the Office interprets the ratio of press cake to water in claim 26 as a weight ratio. Still further, the Office interprets a “predetermined amount of” yeast in claim 36 to include any amount of yeast other than none.
Regarding instant claims 26, 28, 34 and 36-37, Toubia at Abstract discloses an extrudate comprising yeast and (at [046]) an additional protein, including (at [047]) a seed protein. Further, at [091] Toubia discloses a meat-like product (“meat-alternative product”- claims 26 and 36) formed by a method comprising extruding a mixture (“using an extruder”) to form the meat-alternative product (claim 36). In Example 1 at [0126] and Table 1, Toubia discloses high moisture extruding a mixture of 52.0 wt% water (“added during the extruding” - claim 36), 19.3 wt% of yeast (claim 26) as Saccharomyces fragilis (“adding to the press cake a predetermined amount of yeast to obtain a mixture” in claim 36) and 26 wt% of pumpkin seed protein (a “press cake... obtained from pressing oil from oilseeds of one or more oil producing seeds” in claim 26 in which the oilseeds comprise pumpkin seeds - claims 28 and 37), to form a plant and yeast-based meat-alternative product (claim 26) that has a fiber-like structure (“an anisotropic structure” - claims 34 and 36). Further, the weight ratio of press cake to water in Example 1 of Toubia is 1:2 (claim 26).
The Office considers the recited method of “obtaining a press cake derived from an oil producing seed” as in claim 36 as including the forming of the pumpkin seed protein or any other oilseed protein disclosed in Toubia.
Further, and regarding instant claim 27, the Office considers the recited meat-alternative product essentially devoid of wheat, nuts and/or soy (claim 26) and essentially devoid of gluten (claim 27) as including the product of Toubia in Example 1 as it does not include wheat, nuts and/or soy.
Example 1 of Toubia does not disclose a meat-alternative product contains an inactivated yeast; however, at [0132] and Table 11 Toubia discloses using inactive yeasts (“inactivated yeasts”) as in claims 26 and 36. The ordinary skilled artisan would have found it obvious in Toubia to use the inactivated yeast of Table 11 of Toubia as a protein source because Toubia discloses such inactivated yeasts as providing a desirable protein source in a meat-alternative product.
In addition, and regarding instant claim 35, Toubia does not disclose a meat-alternative product or method of making it wherein at least a portion of the seeds are partially roasted at a temperature of at least 100°C; and, Toubia does not disclose a press cake in which at least 25 % of the one or more seeds are partially roasted as in claim 35.
Wakeland at Abstract discloses methods for producing hemp seed proteins and oils. At [0061], Wakeland discloses roasting 100% of the hemp seeds as in claim 35 at a temperature of at least 100 °C. At [0067], Wakeland discloses that pressing the hemp seeds results in a press cake that can have a wide range of from 2 to 20 wt% oil. Further, at [0085] and Example 17 in the Table bridging pages 11 and 12, Wakeland discloses meat crumbles (“meat-alternative products”) comprising the hemp seed press cake and having a consumer preferred flavor.
Before the effective date of the present invention, the ordinary skilled artisan would have found it obvious in view of Wakeland for Toubia to make a meat-alternative product comprising the extrudate of a press cake derived from an oil producing seed, wherein at least a portion of the seeds and at least 25 wt% of the seeds are partially roasted at a temperature of at least 100°C and having a fat content of between 5 and 15 % w/w. Both references disclose meat-alternative products from oilseed press cakes. The ordinary skilled artisan in Toubia would have desired to use a press cake from at least partially roasted oilseeds as in Wakeland to provide a meat-alternative product having an improved flavor and to enable the making or a press cake for use in such products from which fat is more easily extracted to adjust for taste or ease of processing.
Regarding instant claim 32, at [065] Toubia discloses a yeast selected from Saccharomyces cerevisiae, Streptomyces natalensis, Streptomyces chattanoogensis, Saccharomyces fragilis, Candida utilis, Candida guilliermondii, Candida lipolityca, or any combination thereof.
Regarding instant claim 33, Toubia at Table 1 discloses that its Example 1 press cake has a fat content about 9 % w/w (2.3% out of 26%).
Regarding instant claim 43, Toubia at [094] discloses that in its extrusion the defatted proteins or press cake materials are heated to 150 to 200 °C. The Office considers the claimed hot, cooking extrusion as including the extrusion disclosed in Example 1 and [094] of Toubia.
Claims 29-31, 38-41 and 44 are rejected under 35 U.S.C. 103 as being unpatentable over WO2021/165973 A1 to Toubia et al. (Toubia) in view of US2022/0000140 to Wakeland-Rosen et al. (Wakeland) as applied to claims 26 and 36 above, and further in view of US2020/0390125 A1 to Janvary et al. (Janvary), of record.
Unless otherwise disclosed, the Office interprets all %s as weight %s and all ratios as weight ratios and, further, interprets weight and mass as interchangeable.
As applied to claims 26 and 36, Toubia at Example 1 and [0126], and Table 11 and [0132] as modified by Wakeland [0061], [0067], [0085] and Example 17 in the Table bridging pages 11 and 12, discloses plant and yeast-based meat-alternative products having an anisotropic structure and methods for making them. The products comprise a mixture of an oilseed press cake, at least about 2% w/w inactivated yeast and water in a press cake to water weight ratio of 3:2 to 1:3, wherein the at least a portion of the oil seeds are roasted prior to their de-oiling. The methods disclosed in Toubia as modified by Wakeland comprise obtaining the press cake from the roasted oil seed, wherein the at least a portion of the seeds is roasted at a temperature of at least 100 °C, then adding the inactivated yeast and water to the press cake and extruding the mixture.
Regarding instant claims 29-31, 38-41 and 44, Toubia does not disclose pumpkin seeds constituting about 30-80% w/w of the press cake as in claims 29 and 38; Toubia does not disclose the oil seeds comprising sunflower seeds as in claims 30 and 39; further, Toubia does not disclose sunflower seeds comprising about 5 to 40 % w/w of the press cake as in claims 31 and 40; still further, Toubia does not disclose sunflower seeds comprising about 10-25 % w/w of the press cake as in claim 41; and, Toubia does not disclose pre-cooking the extruded meat-alternative product. However, at [046]-[047] discloses that its extrudates comprise seed proteins as additional proteins. Further, at [0106] Toubia discloses using sunflower seeds and pumpkin seeds to mask the taste of the yeast.
The Office interprets the recited pre-cooking in claim 44 as cooking at any time before doing anything with a plant and yeast-based meat-alternative product, such as eating it.
Janvary at Abstract disclose oilseed meals a plant proteins useful as a meat analogue and methods for making them. At [0011]-[0012], Janvary discloses food products comprising a plant protein and an oilseed meal or press cake. In addition, at [0575] Janvary discloses pre-heating burgers prior to eating them. At [0044], Janvary discloses de-oiled (at [0040]) oilseed meals or press cakes comprising pumpkin seeds, sunflower seeds or their combinations. At [0016], Janvary discloses the oilseed meal consists of sunflower meal, linseed meal or both; and, at [0048] Janvary discloses press cakes comprising at least 80 wt% of linseeds, whereby a combination of the linseeds and sunflower seeds comprises 20 wt% or less of sunflower seeds, which the claimed about 5 to 40 % w/w in claims 31 and 40 overlaps, and which the claimed about 10-25 % w/w in claim 41 overlaps. Further, at [0048] Janvary discloses press cakes comprising at least 80 wt% of pumpkin seeds, which the claimed about 30 to 80 % w/w in claim 29 and 38 overlaps. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. MPEP 2144.05.I. It would have been obvious to the ordinary skilled artisan to use the claimed amounts of sunflower seeds and pumpkin seeds in the meat-alternative products of Janvary because Janvary discloses that the claimed amounts of such seeds provide a desirable meat-alternative product.
Before the effective date of the present invention, the ordinary skilled artisan would have found it obvious in view of Janvary for Toubia as modified by Wakeland to pre-cook its extruded meat-alternative product prior to use and to make and use all of press cakes comprising sunflower seeds, press cakes comprising from about 30-80% w/w of pumpkin seeds, press cakes comprising from about 5 to 40 % w/w of sunflower seeds, and press cakes comprising from about 10-25 % w/w of sunflower seeds. All references disclose meat-alternative products comprising press cakes or oil seed meals. The ordinary skilled artisan in Toubia as modified by Wakeland would have desired to use the claimed amounts of sunflower seeds and pumpkin seeds in its press cakes to improve or modify the flavor of its yeast containing meat-alternative products; further, the ordinary skilled artisan would have desired to pre-cook the meat-alternative product of Toubia as modified by Wakeland as in Janvary to make a desirably hot plant and yeast-based meat-alternative product prior to eating it.
Claims 26-28, 32-37, and 42-44 are rejected under 35 U.S.C. 103 as being unpatentable over US2022/0000140 to Wakeland-Rosen et al. (Wakeland) in view of WO2021/165973 A1 to Toubia et al. (Toubia) and US2009/0208612 A1 to Reiser et al. (Reiser).
Unless otherwise disclosed, the Office interprets all %s as weight %s and all ratios as weight ratios and, further, interprets weight and mass as interchangeable.
The Office interprets the recited “essentially devoid of wheat, nuts and/or soy” in claim 26 as including any composition that lacks any one or more of wheat, nuts and soy. Further, the Office interprets the ratio of press cake to water in claim 26 as a weight ratio. Still further, the Office interprets a “predetermined amount of” yeast in claim 36 to include any amount of yeast other than none. Yet still further, the Office interprets the recited inactivated yeast comprising 5-30% w/w of a press cake containing mixture in claim 42 as being an amount of inactivated yeast, based on the total weight of the press cake. In addition, the Office interprets the recited pre-cooking in claim 44 as cooking at any time before doing anything with a plant and yeast-based meat-alternative product, such as eating it.
Regarding instant claims 26, 33 and 35-36, Wakeland at [0085] and Example 17 in the Table bridging pages 11 and 12 discloses meat crumbles (“plant and yeast-based meat-alternative products” or “meat-alternative products” claims 26 and 36) having a consumer preferred flavor and comprising a mixture of 31.68 weight parts of a hemp seed (oilseed) press cake and 67.18 weight parts water (“the press cake and water are in a weight ratio of from about 1:2” as in claim 26 and “wherein more than 40% w/w water is added” in claim 36). Further, Wakeland at Abstract discloses methods for producing hemp seed proteins and oils. At [0061], Wakeland discloses roasting 100% of the oil seeds as in claim 35 at a temperature of at least 100 °C. At [0067], Wakeland discloses that pressing the hemp seeds (“obtaining a press cake from an oil producing seed” - claim 36) results in a press cake (“press cake... obtained from pressing oil from oilseeds of one or more oil producing seeds” in claim 26) that can have a wide range of from 2 to 20 wt% oil, which the claimed between 5-15 % w/w in claim 33 lies within.
In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art", the Office considers that a prima facie case of obviousness exists. See MPEP 2144.05.I. It would have been obvious to the ordinary skilled artisan to make and use a press cake comprising the claimed amount of fat because Wakeland discloses that the claimed amounts of such fat in such press cakes provides a desirable meat-alternative product.
Further, and regarding instant claim 27, the Office considers the recited meat-alternative product essentially devoid of wheat, nuts and/or soy (claim 26) and essentially devoid of gluten (claim 27) as including the product of Wakeland in Example 17 as it does not include wheat, nuts and/or soy.
Still further, and regarding instant claims 28, 34, 37 and 42-44, Wakeland does not disclose a plant and yeast-based meat-alternative product comprising at least about 2 % w/w of the meat-alternative product of inactivated yeast as in claim 26 or disclose adding to the press cake a predetermined amount of inactivated yeast to obtain a mixture in claim 36, or disclose an amount of the inactivated yeast of 5-30% w/w of the total weight of the press cake as in claim 42. Further, Wakeland does not disclose pumpkin seed as an oilseed as in claims 28 and 37. Still further, Wakeland does not disclose extruding the mixture using an extruder as in claim 36, thereby obtaining a meat-alternative product having an anisotropic structure as in claims 34 and 36, or the plant and yeast-based meat-alternative product having an anisotropic structure as in claims 34 and 36. Also, Wakeland does not disclose extrusion as hot, cooking extrusion in claim 43, or disclose a method of pre-cooking the extruded meat-alternative product prior to use or eating as in claim 44.
Toubia at Abstract discloses an extrudate comprising yeast and (at [046]) an additional protein, including (at [047]) a seed protein. Further, at [091] Toubia discloses a meat-like product (“meat-alternative product”) formed by a method comprising extruding a mixture to form the meat-alternative product. In Example 1 at [0126] and Table 1, Toubia discloses high moisture extruding a mixture of 52.0 wt% water (“added during the extruding” - claim 36), 19.3 wt% of yeast and 26 wt% of pumpkin seed protein to form a plant and yeast-based meat-alternative product. The Example 1 product of Toubia has a fiber-like structure or an anisotropic structure. Further, at [0132] and Table 11 Toubia discloses using inactive yeasts (“inactivated yeasts”) as providing a protein source in a meat-alternative product having a desirable flavor. In addition, Toubia at [094] discloses that in its extrusion the defatted proteins or press cake materials are heated to 150 to 200 °C. The Office considers the claimed hot, cooking extrusion as including the extrusion disclosed in Example 1 and [094] of Toubia.
Reiser at Abstract discloses meat analog products (“meat-alternative products”) having aligned fibers or an anisotropic structure and made by extrusion, wherein the products comprise (at [0050]) vegetable proteins as a dry component. Further, Reiser discloses at [0056] methods of extruding mixtures to form the meat-alternative products using (at [0060]) water as the liquid and inactivated yeast as a reducing agent to provide (at [0019]) a shelf stable high moisture plant based meat-alternative product. At [0064], Reiser discloses an amount of from 0 to 5 wt% inactivated yeast, based on the weight of the dry component that includes the inactivated yeast, which the claimed at least 2 % w/w of inactivated yeast of the meat-alternative product in claim 26 overlaps, and which the 5-30% w/w of the total weight of the press cake in claim 42 lies within. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. MPEP 2144.05.I. It would have been obvious to the ordinary skilled artisan to use the claimed amounts of inactivated yeast in the extruder mixture for making the meat-alternative products of Reiser because Reiser discloses that the claimed amounts of such inactivated yeast provides a desirable meat-alternative product and structure.
In addition, Reiser at [0077] discloses retorting or frying to pre-cook its meat-alternative product prior to storage or use.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Toubia for Wakeland to extrude its mixture of press cake and water as in claims 26 and 36 using pumpkin seed as its oilseed as in claims 28 and 37. It further would have been obvious to the ordinary skilled artisan in view of Toubia for Wakeland to form a product having an anisotropic structure as in claims 34 and 36, and to use hot-cooking extrusion to form a cooked plant meat-alternative product as in claim 43. Both references disclose plant-based meat-alternative products comprising oilseed meals. The ordinary skilled artisan in Wakeland would have desired to extrude its oilseed and water mixture as in Toubia to make a product having a desirable meat-like anisotropic texture, to use pumpkin seeds in its press cake to provide a varied and desirable flavor to its product, and to cook the mixture in extrusion to form a more stable product that is ready to heat and eat.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Reiser for Wakeland as modified by Toubia to add the claimed amount of inactivated yeast as at 2% w/w in claim 26 and about 5-40% w/w of the press cake as in claim 42 and to pre-cook the meat-alternative product as in claim 44. Both references disclose plant based meat-alternative products. The ordinary skilled artisan in Wakeland would have desired to include the claimed amount of inactivated yeast as in Reiser to form an airy, porous meat like structure and, further, would have desired to pre-cook its product as in Reiser to make a more shelf-stable product that retains its shape.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. US 3,891,774 to Baker et al. (Baker) discloses at abstract a meat simulating product which (at col. 2, lines 9-15) is stabilized against bacterial growth and which comprises (at col. 2, lines 51-58) a yeast and an oilseed meal. At Example 6 on col. 8, Baker discloses extruding a mixture of the oilseed meal and yeast to make the meat like product.
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/ANDREW E MERRIAM/Examiner, Art Unit 1791