DETAILED ACTION
Background
The amendment dated April 29, 2026 (amendment) amending claims 26, 28-37, 39, 41-42 and 44 and adding new claims 45-46 has been entered. Claims 26-46 as filed with the amendment have been examined. Claims 1-25 have been canceled. In view of the amendment, all outstanding claim objections have been withdrawn.
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. Claims 28, 32, 35-37, 39, 42 and 45-46 are objected to because of the following informalities:
In claim 28, at line 4 after “linoleic acid”, insert --to an amount of--;
In claim 32, at lines 2-4 after “selected from” on line 2 write the names of the yeast species in italics as --Saccharomyces cerevisiae, Streptomyces natalensis, Streptomyces chattanoogensis, Saccharomyces fragilis, Candida utilis, Candida guilliermondii, and Candida lipolityca--;
In claim 35, at line 2 after “wherein” insert -- the--’
In claim 36, at line 4 before “between 10-“ insert --for a period of --, and, at line 5 after “linoleic acid”, insert --to an amount of--;
In claim 37, at line 1, after “oil producing” change make --seeds-- plural;
In claim 39, at line 1 after “oil producing” change make --seeds-- plural, and, at line 2 before “sunflower seeds” make --comprises-- plural;
In claim 42, at line 2 after “total weight” add -- of the--;
In claim 45, at line 9 before “pumpkin seeds” make --comprises-- plural; and,
In claim 46, at line 2, at line 9 after “producing seeds” make --comprise--.
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 26-46 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.
Regarding instant claims 26, 45 and 46, at three separate instances one in each of claims 26 and 45, at lines 8-9, and in claim 46, at line 1 the term “one or more” oil producing seeds is indefinite. Because the claims require pumpkin seeds and sunflower seeds it is not possible for the claim to include one species of oil producing seeds. Claim 46 at line 1 also repeats the term “one or more”. The Office has withheld an objection to the term “one or more one or more” because Applicant is free to delete the whole thing.
The Office interprets claims as reciting oil producing seeds comprising pumpkin seeds and sunflower seeds.
Regarding instant claims 35 and 41, in claim 35, at lines 2-3 and in claim 41 at lines 2-3 the term “reduces the tocopherols in the …oil producing seeds less than 15% w/w” is indefinite in scope. The amount of tocopherols in the meat-alternative product is unclear. Does the claim intend to recite reducing the amount of tocopherols by less than 15 % w/w or reducing the amount of tocopherols to an amount that is less than 15% w/w of the original amount?
6. 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 added amount of water an amount 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 recited mixture, or some other basis for weight %?
The Office interprets the claim 36 amount of water as a percent based on any reasonable basis, including all of the total weight of the recited mixture added to the extruder, the total weight of the recited meat-alternative product, the total weight of dry materials or solids in the recited mixture, or the final wet mixture in the extruder.
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 is not disclosed as part of the press cake; yet, the claim reads as if the yeast has been put into the press cake. Is it simply that the amount of yeast used is the amount based on the total weight of the press cake, or is the yeast included in the press cake?
The Office would consider a claim reciting an amount of yeast as a % w/w based on the total weight of the press cake as being definite. The presscake does not then have to contain the yeast.
The Office interprets claim 42 as reciting an amount of yeast, based on the total weight of the press cake.
Claim 45 recites the limitation "the sunflower seeds" in each of lines 11 and 12 (two instances). There is insufficient antecedent basis for this limitation in the claim. Claim 45 does not recite sunflower seeds, reciting instead “oil producing seeds” and “pumpkin seeds”.
Claim 45 recites the limitation "the partially roasted pumpkin seeds" in line 13. There is insufficient antecedent basis for this limitation in the claim. Claim 45 does not recite any roasting of pumpkin seeds.
Claims 27-34 37-40 and 43-44 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 26-41 and 43-46 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), US2020/0390125 A1 to Janvary et al. (Janvary), all of record, and US2021/0169096 A1 to Randolph (Randolph).
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 “partially roasted” seeds to include any amount of roasting of any proportion of any of the seeds as claimed.
The Office interprets the recited “essentially devoid of wheat, nuts and soy” in claims 26 and 45 as including any composition that lacks any one or more of wheat, nuts and soy.
The Office interprets the claim 36 amount of water as a percent based on any reasonable basis, including all of the total weight of the recited mixture added to the extruder, the total weight of the recited meat-alternative product, the total weight of dry materials or solids in the recited mixture, or the final wet mixture in the extruder. 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, 34 and 36-37 and 45, 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 (“plant and yeast-based meat-alternative product”- claims 26, 36 and 45) 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 and including adding 52.0 wt% water to the mixture (“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 claims 26 and 45 in which the oilseeds comprise pumpkin seeds - claims 26, 37 and 45), to form the plant and yeast-based meat-alternative product 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 (claims 26 and 45).
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 or 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 (claims 26 and 45) and essentially devoid of gluten (claim 27) as including the product of Toubia in Example 1 as it does not include wheat, nuts and soy.
In addition, and regarding instant claims 28 and 35, Example 1 of Toubia does not disclose a meat-alternative product that contains an inactivated yeast; however, at [0132] and Table 11 Toubia discloses using inactive yeasts (“inactivated yeasts”) as in claims 26, 36 and 45; and, 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. Further, Toubia does not disclose a press cake obtained from pressing of oil from one or more oil producing seeds wherein the one or more oil producing seeds comprises pumpkin seeds and sunflower seeds, wherein the pumpkin seeds constitute about 30-80% w/w of the press cake and the sunflower seeds constitute about 5-20% w/w of the press cake as in claim 26, or wherein the pumpkin seed comprise 30-60% w/w of the press cake as in claim 45; and, Toubia does not disclose methods wherein at least a portion of the pumpkin seeds and sunflower seeds are partially roasted prior to their de-oiling as in claim 26, or wherein at least a portion of the sunflower seeds are partially roasted prior to their de-oiling as in claim 45. 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.
Still further and regarding instant claim 41, Toubia does not disclose a meat-alternative product wherein the pumpkin seeds and sunflower seeds or oil producing seeds are partially roasted prior to their de-oiling at a temperature of at least 100 °C between 10-60 min as to reduce the amount of linoleic acid less than 5% w/w of the amount of linoleic acid found in the seeds before roasting as in claims 28 and 36; Toubia does not disclose a meat-alternative product or methods of making wherein the partially roasting reduces the tocopherols in the one or more oil producing seeds less than 15% w/w during roasting as in claims 35 and 41; and, Toubia does not disclose a meat-alternative product wherein at least a portion of the oil producing seeds are fully roasted as in claim 36.
Yet still further and regarding instant claims 29-31, 38-41, 44 and 46, Toubia does not disclose pumpkin seeds constituting about 30% w/w of the press cake as in claim 29 or about 30-80% w/w of the press cake as in claim 38; Toubia does not disclose a meat-alternative product wherein the partially roasted sunflower seeds comprise about 8 % w/w of the press cake and about 8% w/w of the press cake includes fully roasted sunflower seeds as in claim 30; further, Toubia does not disclose sunflower seeds comprising about 5 to 40 % w/w of the press cake as in claims 31 and 40; Toubia does not disclose the oil seeds further comprising sunflower seeds as in claim 39; Toubia does not disclose a method wherein the partially roasting reduces the tocopherols in the seeds less than Toubia does not disclose a meat-alternative product wherein the partially roasted pumpkin seeds constitute about 30% w/w of the press cake, and the fully roasted pumpkin seeds comprise about 30% w/w of the press cake as in claim 45; and Toubia does not disclose a meat-alternative product wherein the sunflower seeds constitute about 5-20% w/w of the press cake and wherein about 8% w/w of the press cake are partially roasted sunflower seeds prior to de-oiling as in claim 46.
The Office interprets the recited “cooking” in claim 44 as cooking the recited meat-alternative product at any time and for any amount of time.
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 140 °C for 20 minutes. 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. Further, at [0042] Wakeland discloses that excessive heating or roasting can damage the proteins in the oilseeds.
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. in addition, at [0046] Janvary discloses blends of multiple oilseeds in a product. It would have been obvious to the ordinary skilled artisan to blend and 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.
Randolph at [0143] discloses plant based food products comprising one or more of sunflower seeds and squash seeds or (at [0094]) pumpkin seeds and mixtures of sunflower seeds and squash seeds. Further, at [0144] Randolph discloses that oil producing seeds can be toasted (“roasted”) or otherwise pretreated to reduce the amount of insoluble components and reduce off-flavors.
The federal circuit has taken the position that new recipes or formulas for cooking food which involve the addition or elimination of common ingredients, or for treating them
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ways which differ from the former practice, do not amount to invention merely because it is not disclosed that,
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the constantly developing art of preparing food, no one else ever did the particular thing upon which the applicant asserts his right to a patent.
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all such cases, there is nothing patentable unless the applicant by a proper showing further establishes a coaction or cooperative relationship between the selected ingredients which produces a new, unexpected, and useful function. In re Levin, 178 F.2d 945 (C.C.P.A. 1949), 84 USPQ 232, 234
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 any of the seeds is at least partially roasted at a temperature of at least 100°C for from 10-60 minutes and to produce a presscake 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.
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 cook its extruded meat-alternative product prior to use and to make and use of all of: Press cakes comprising sunflower seeds, press cakes comprising from about 30-80% w/w of pumpkin seeds and 5-20% w/w of sunflower seeds; or comprising from; press cakes comprising from about 5 to 40 % w/w of sunflower seeds; and press cakes comprising from about 5-20 % w/w of sunflower seeds and about 30-80% w/w of pumpkin 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.
Before the effective date of the present invention, the ordinary skilled artisan would have found it obvious in view of Randolph for Toubia as modified by Wakeland to partially or fully roast any amount of its pumpkin seeds and sunflower seeds, including partially roasting about 30% w/w of pumpkin seeds in the press cake and fully roasting about 30% w/w of pumpkin seeds in the press cake, or wherein about 8% w/w of the press cake are partially roasted sunflower seeds and about 8% w/w of the press cake includes fully roasted sunflower seeds prior to de-oiling. All references disclose food products from press cakes of oil producing seeds. The ordinary skilled artisan in Toubia as modified by Wakeland would have desired to provide any mixture of oil producing seeds as pumpkin seeds and sunflower seeds wherein any portion of the pumpkin seeds and sunflower seeds is fully or partially roasted as in Randolph to reduce off flavors and help remove insolubles while limiting damage to the oilseed proteins as in Wakeland.
The Office considers the meat-alternative product of Toubia as modified by Wakeland, Janvary and Randolph to be substantially the same thing as the claimed meat-alternative product. Accordingly, absent a clear showing as to how the tocopherol and linoleic acid content of the meat-alternative product of Toubia as modified by Wakeland, Janvary and Randolph differs from that of the meat-alternative product as claimed, the Office considers meat-alternative product Toubia at Example 1, {00911], [0094], [0096] and [0106] as modified by Wakeland at [0042], [0062] and [0085], Janvary at [0046] and [0048] and Randolph at [0094] and [0143]-[0144] to comprise a meat-alternative product wherein at least a portion of the oil producing seeds is partially roasted to reduce the amount of linoleic acid less than 5% w/w of the amount of linoleic acid found in the seed before roasting as in claims 28 and 36; and a meat-alternative product or method of making wherein the partially roasting reduces the tocopherols in the one or more oil producing seeds less than 15% w/w during roasting as in claims 35 and 41. See MPEP 2112.01.I
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 36-37 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), US2009/0208612 A1 to Reiser et al. (Reiser), of record, and US2021/0169096 A1 to Randolph (Randolph).
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 “partially roasted” seeds to include any amount of roasting of any proportion of any of the seeds as claimed.
The Office interprets the claim 36 amount of water as a percent based on any reasonable basis, including all of the total weight of the recited mixture added to the extruder, the total weight of the recited meat-alternative product, the total weight of dry materials or solids in the recited mixture, or the final wet mixture in the extruder. Further, the Office interprets a “predetermined amount of” yeast in claim 36 to include any amount of yeast other than none
Regarding instant claim 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”) 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 ( “wherein more than 40% w/w water is added”). Further, Wakeland at Abstract discloses methods for producing hemp seed proteins and oils. At [0061], Wakeland discloses roasting 100% of the oil seeds for 20 minutes at a temperature of 140 °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 that can have a wide range of from 2 to 20 wt% oil. In addition, at [0042] Wakeland discloses that excessive heating or roasting can damage the proteins in the oilseeds.
Further, and regarding instant claims 37 and 42-44, 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 “cooking” in claim 44 as cooking the recited meat-alternative product at any time and for any amount of time.
Further, Wakeland does not disclose a method of producing a meat-alternative product comprising adding to the press cake a predetermined amount of inactivated yeast to obtain a mixture and extruding the mixture using an extruder, thereby obtaining a meat-alternative product having an anisotropic structure as in claim 36; and does not disclose a meat-alternative product wherein the pumpkin seeds and sunflower seeds or oil producing seeds are partially roasted prior to their de-oiling at a temperature of at least 100 °C between 10-60 min as to reduce the amount of linoleic acid less than 5% w/w of the amount of linoleic acid found in the seeds before roasting as in claim 36; and, does not disclose a meat-alternative product wherein at least a portion of the oil producing seeds are fully roasted as in claim 36. Further, Wakeland does not disclose pumpkin seed as an oilseed as in 37; does not disclose an amount of the inactivated yeast of 5-30% w/w of the total weight of the press cake as in claim 42. Also, Wakeland does not disclose extrusion as hot, cooking extrusion in claim 43, or disclose a method of 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. Further, at [0106] Toubia discloses using sunflower seeds and pumpkin seeds to mask the taste of the yeast.
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.
Randolph at [0143] discloses plant based food products comprising one or more of sunflower seeds and squash seeds or (at [0094]) pumpkin seeds and mixtures of sunflower seeds and squash seeds. Further, at [0144] Randolph discloses that oil producing seeds can be toasted (“roasted”) or otherwise pretreated to reduce the amount of insoluble components and reduce off-flavors.
The federal circuit has taken the position that new recipes or formulas for cooking food which involve the addition or elimination of common ingredients, or for treating them
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ways which differ from the former practice, do not amount to invention merely because it is not disclosed that,
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the constantly developing art of preparing food, no one else ever did the particular thing upon which the applicant asserts his right to a patent.
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all such cases, there is nothing patentable unless the applicant by a proper showing further establishes a coaction or cooperative relationship between the selected ingredients which produces a new, unexpected, and useful function. In re Levin, 178 F.2d 945 (C.C.P.A. 1949), 84 USPQ 232, 234.
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 claim 36 using pumpkin seed as its oilseed as in claim 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 least about 2% w/w of the meat-alternative product as in claim 36, or about 5-40% w/w of the press cake as in claim 42 and to 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.
Before the effective date of the present invention, the ordinary skilled artisan would have found it obvious in view of Randolph for Wakeland as modified by Toubia to partially or fully roast any amount of oil producing seeds and pumpkin seeds prior to de-oiling, including partially roasting about 30% w/w of pumpkin seeds in the press cake and fully roasting about 30% w/w of pumpkin seeds in the press cake. All references disclose food products from press cakes of oil producing seeds. The ordinary skilled artisan in Wakeland as modified Toubia by would have desired to provide any mixture of oil producing seeds as pumpkin seeds and sunflower seeds wherein any portion of the pumpkin seeds and sunflower seeds is fully or partially roasted as in Randolph to reduce off flavors and help remove insolubles while limiting damage to the oilseed proteins as in Wakeland.
The Office considers the meat-alternative product of Wakeland as modified by Toubia, Reiser and Randolph to be substantially the same thing as the claimed meat-alternative product. Accordingly, absent a clear showing as to how the tocopherol and linoleic acid content of the meat-alternative product of Toubia as modified by Wakeland, Janvary and Randolph differs from that of the meat-alternative product as claimed, the Office considers meat-alternative product of Wakeland at [0042], [0062] and [0085] as modified by Toubia at Example 1, {00911], [0094], [0096] and [0106], Reiser at [0056] and [0064] and Randolph at [0094] and [0143]-[0144] to comprise a meat-alternative product wherein at least a portion of the oil producing seeds is partially roasted to reduce the amount of linoleic acid less than 5% w/w of the amount of linoleic acid found in the seed before roasting as in claim 36. See MPEP 2112.01.I
Response to Arguments
In view of the amendment dated April 29, 2026, the following rejections have been withdrawn as moot:
The rejections of claims 26-35, 37-41 and 43-44 under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite in regard to each of:
the recited “ratio of press cake to water” in claim 26;
the recited “seed types” recited in claims 26, 28 and 30;
the recited "meat replacement product" in claims 33, 34 and 35;
the recited amount of “25% or more of one or more seeds in a press cake” in claim 35;
the recited "wherein the” oil seeds “further comprise sunflower seeds” in claims 30 and 39; and,
the recited “pre-cooking” in claim 44;
The rejections of claims 26-28, 32-37 and 43 under 35 U.S.C. 103 as being unpatentable over WO2021/165973 A1 to Toubia et al. in view of US2022/0000140 to Wakeland-Rosen et al.; and,
The rejections of claims 26-28 and 32-35 under 35 U.S.C. 103 as being unpatentable over US2022/0000140 to Wakeland-Rosen et al. in view of WO2021/165973 A1 to Toubia et al. and US2009/0208612 A1 to Reiser et al.
Regarding the positions taken in the remarks accompanying amendment dated April 29, 2026 (Reply), the Office has fully considered the positions taken and does not find the positions persuasive for the following reasons:
Regarding the position taken in the Reply and the outstanding indefiniteness rejections of claims 36 and 42, the rejections of language in these two claims remain. from the prior office action. Although the Reply stated that the claims have been amended accordingly the amendments did not address what in claim 36 is the need for a basis for the weight% of water and what in claim 42 is a lack of clarity as to whether the recited yeast is in the seed cake.
Regarding the position taken in the Reply and claim 26 that Toubia in view of Wakeland and Reiser fail to teach or fairly suggest a "press cake obtained from pressing of oil from one or more oil producing seeds wherein the one or more oil producing seeds comprises pumpkin seeds and sunflower seeds, wherein the pumpkin seeds constitute about 30-80% w/w of the press cake and the sunflower seeds constitute about 5-20% w/w of the press cake, wherein at least a portion of the pumpkin seeds and sunflower seeds are partially roasted prior to their de-oiling, respectfully the rejection does rely on any of Toubia in view of Wakeland and Reiser for the recited proportions of pumpkin seeds and sunflower seeds or the proportions of which oil producing seeds are partially roasted..
Regarding the position taken in the Reply and claim 36 that Toubia in view of Wakeland fail to teach or fairly suggest the recited "obtaining a press cake derived from an oil producing seed, wherein at least a portion of the oil producing seeds is partially roasted at a temperature of at least 100 °C. between 10-60 min as to reduce the amount of linoleic acid less than 5% w/w of the amount of linoleic acid found in the seed before roasting and at least a portion of the oil producing seeds are fully roasted", respectfully the claims do not rely on Toubia for any recited roasting of seeds. Further, the rejection challenged in the Reply does not rely on Wakeland to show the amount of seeds fully or partially roasted.
Regarding the position taken in the Reply and claim 36 that Wakeland in view of Reiser and Toubia do not teach or fairly suggest a "press cake obtained from pressing of oil from one or more oil producing seeds wherein the one or more oil producing seeds comprises pumpkin seeds and sunflower seeds, wherein the pumpkin seeds constitute about 30-80% w/w of the press cake and the sunflower seeds constitute about 5-20% w/w of the press cake, wherein at least a portion of the pumpkin seeds and sunflower seeds are partially roasted prior to their de-oiling", the argument is not understood. Respectfully, claim 36 does not recite pumpkin seeds and sunflower seeds. Further, the rejection over Wakeland in view of Toubia and Reiser is not allied to claim 26 and the prior rejections do not rely on any of Wakeland Toubia or Reiser for disclosing the recited proportions of pumpkin seeds and sunflower seeds.
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 ANDREW E MERRIAM whose telephone number is (571)272-0082. The examiner can normally be reached M-H 8:00A-5:30P and alternate Fridays 8:30A-5P.
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/ANDREW E MERRIAM/Examiner, Art Unit 1791
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