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 .
Election/Restrictions
Claims 13-24 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 5/7/26.
Applicant's election with traverse of Group I, claims 1-12 in the reply filed on 5/7/26 is acknowledged. The traversal is on the ground(s) that the prior art of Noble allegedly does not teach or suggest the specific combination of a thermogelling hydrocolloid with a reversibly gelling hydrocolloid as claimed. This is not found persuasive because Noble teaches an egg white substitute and further explicitly teach using a thermogelling hydrocolloid (methyl cellulose, as disclosed by Applicant on page 5, par.3, lines 1-7 of the instant specification) with a reversibly gelling hydrocolloid (carrageenan, as disclosed by Applicant on page 5, par.3, last line, and page 6, par.1, first line of the instant specification) and combinations thereof [Noble, 0083].
The requirement is still deemed proper and is therefore made FINAL.
Specification
The disclosure is objected to because of the following informalities:
On page 3, last paragraph, line 3, “(Cicer arientinum)” should read “(Cicer arietinum)”.
On page 5, first paragraph, line 1, “(kala Namak)” should read “(Kala namak) or (Kala Namak)”.
Appropriate correction is required.
Claim Objections
Claims 2-12 are objected to because of the following informalities:
Claims 2-12 all recite the limitation of “The egg white substitute product of claim 1” in line 1. The claims should recite “The vegan based egg white substitute product of claim 1” in order to maintain nomenclature consistency with “A vegan based egg white substitute product” recited in claim 1, line 1.
Appropriate correction is required.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-8, 10 and 12 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-15 of copending Application No. 18713340 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because:
Claim 1 of the copending ‘340 recite the same vegan based egg substitute product composition comprising water; one or more protein from legumes, oilseeds, cereals, algae, or microorganisms; a combination of one or more reversibly thermogelling hydrocolloid with one or more reversibly gelling hydrocolloid; and salt, wherein a portion of the combination of the one or more reversibly thermogelling hydrocolloid(s) with the one or more reversibly gelling hydrocolloid(s) is 0.5-5.0% by weight., which is a range that falls within the claimed range of 0.25-5.00% by weight required in claim 1 of the instant invention (claim 1 of Application No. 18713308).
Claim 6 of the copending ‘340 recite the egg substitute further comprising sulfur compound-containing substance required in claim 2 of the instant invention.
Claim 7 of the copending ‘340 recite the egg substitute further comprising a flavoring formulation required in claim 3 of the instant invention.
Claim 8 of the copending ‘340 recite the egg substitute comprises the hydrocolloid methyl cellulose required in claim 4 of the instant invention.
Claim 8 of the copending ‘340 recite the egg substitute comprises the hydrocolloid carrageenan required in claim 5 of the instant invention.
Claim 10 of the copending ‘340 recite the egg substitute comprises a plant protein from peas, chickpeas, and/or field beans (faba beans) required in claim 6 of the instant invention.
Claim 11 of the copending ‘340 recite the egg substitute wherein the plant protein comprises a form of a raw and/or hydrolyzed and/or fermented flour, a protein concentrate, a protein isolate and/or any combination thereof required in claim 7 of the instant invention.
Claim 12 of the copending ‘340 recite the egg substitute comprises between 1% by weight and 35% by weight of the protein, which is a range that encompass the claimed % by weight range of proteins of 0.1% by weight - 15.0% by weight of dissolved proteins required in claim 8 of the instant invention.
Claim 1 of the copending ‘340 recite the egg substitute comprises 0.5-5.0% by weight of the thermogelling and reversibly gelling hydrocolloids, which is a range that encompass the claimed range of 0.5%-3.5% by weight of the thermogelling and reversibly gelling hydrocolloids required in claim 10 of the instant invention.
Claim 13 of the copending ‘340 recite the egg substitute comprises between 1% by weight and 50% by weight of the vegetable oil, which is a range that encompass the claimed 0.1 - 4.0% by weight of a vegetable oil required in claim 12 of the instant invention.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claim 9 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-15 of copending Application No. 18713340 in view of Noble et al. [WO2021116949A1], hereinafter Noble.
The copending claims of 18713340 are silent regarding the vegan based egg white substitute product comprising salt in amounts of from 0.025% by weight - 0.80% by weight as required by claim 9.
Noble teaches a vegan based egg white substitute product, comprising salt in amounts of 0.05% by weight - 1% by weight [Noble, 0079, 0080-0081], and further teaches various examples where the vegan based egg white substitute product comprise black salt in amounts of 0.18% by weight [Noble, Table 13, p.79; Table 16, p.82], 0.13% by weight [Noble, Table 14, p.80], 0.20% by weight [Noble, Table 15, p.80; Table 16, p.82], and 0.14% by weight [Noble, Table 17, p.84], which are amounts that fall within the claimed range of 0.025% by weight - 0.8% by weight with sufficient specificity.
It would have been obvious to one of ordinary skill in the art before the effective filing date of
the claimed invention to include salt in a vegan based egg white substitute product in amounts of from 0.025% by weight - 0.8% by weight as taught by Noble, into the vegan based egg white substitute product of 18713340, because Noble teaches that the use of flavoring ingredients such as salt [Noble, 0081] would provide a slight sulfury taste which corresponds to a natural egg [Noble, 0110-0112].
Claim 11 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-15 of copending Application No. 18713340 in view of David [US20210219581A1].
The copending claims of 18713340 are silent regarding the vegan based egg white substitute product comprising sugar in amounts of from 0.10% by weight - 1.00% by weight as required by claim 11.
David teaches a vegan based egg white substitute product [David, abstract, 0011, 0026, 0077],
vegan based egg white substitute product further comprising a flavoring agent [David, 0015], where
flavoring agent includes sugar in amounts of from 0.10% by weight to 15.00% by weight [David, 0070],
which is a range that encompass the claimed range of 0.10% by weight - 1.00% by weight.
It would have been obvious to one of ordinary skill in the art before the effective filing date of
the claimed invention to include sugar in a vegan based egg white substitute product in amounts of from
0.10% by weight to 15.00% by weight as taught by David, into the vegan based egg white substitute
product of 18713340, because David teaches that various natural or artificial flavoring agents known to
those skilled in the art may be added as desired and these known agents not only include sugar, and
sweeteners, but also salt and black salt [David, 0070], which would allow a skilled artisan to adjust the taste of the vegan based egg white substitute product (i.e., sweetness, flavor profile) based on desired taste of consumer.
This is a provisional nonstatutory double patenting rejection.
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 1-12 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.
Claim 1, last 3 lines recites “wherein a portion of the combination of the reversibly thermogelling hydrocolloid with the reversibly gelling hydrocolloid comprises 0.25-5.00% by weight”. The claim is indefinite because it is unclear as to what the 0.25-5.00% by weight is, (i.e., is the 0.25-5.00% by weight for a portion of the reversibly thermogelling hydrocolloid or a portion of the reversibly gelling hydrocolloid each separately, or if the 0.25-5.00% by weight is of both combined).
Claim 3 recites “(black salt)”. The claim is indefinite because it is unclear if the claim is only specifically to the Kala Namak salt (Himalayan black salt), or if is also allowing the use of for other forms of black salt (i.e., black lava salt).
Claim 6 recites “wherein the plant protein comprises a protein from peas, chickpeas, mung beans, hemp, pumpkin and/or field beans”. The claim is indefinite because claim 1 recites plant protein from legumes, oilseeds, cereals, microorganisms and/or algae and claim 6 separately recites that the plant protein is from peas, chickpeas, mung beans, hemp, pumpkin and/or field beans. That is, claim 6 is not reciting that these are specific species of the various genus recited in claim 1 (i.e., wherein the plant protein from legumes is selected from one or more of peas, chickpeas, mung beans, and/or field beans; wherein the plant protein from oilseeds is hemp……).
Claims 2, 4, 5, and 7-12 are rejected by virtue of their dependance on a base rejected claim.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 1-10, 12 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Noble et al. [WO2021116949A1], hereinafter Noble, evidenced by Keys et al. [US20170020167A1], hereinafter Keys.
Regarding claim 1, Noble teaches a vegan based egg white substitute product, comprising:
water [Noble, 0003];
a plant protein from legume (pea) and algae protein (euglena protein) [Noble, 0006, 0082, 0351-0352];
a combination of a thermogelling hydrocolloid (methyl cellulose, as disclosed by Applicant on page 5, par.3, lines 1-7 of the instant specification) with a reversibly gelling hydrocolloid (carrageenan, as disclosed by Applicant on page 5, par.3, last line, and page 6, par.1, first line of the instant specification) [Noble, 0083, 0177, 0207, 0234]. Noble further teaches various examples where a vegan based egg white substitute product comprise a combination of a thermogelling hydrocolloid (methyl cellulose) with a reversibly gelling hydrocolloid (gellan gum, known in the art as a reversibly gelling hydrocolloid as evidenced by Keys, “the lower-temperature gelling hydrocolloid(s) (e.g., carrageenan and/or gellan gum) can provide stable gels at lower temperatures” [Keys, 0073] or gels as it cools to room temperature as disclosed by Applicant on page 5, par.3, last 8 lines) in amounts of from 0.61% (gellan gum) - 0.66% (methyl cellulose) by weight [Noble, Table 14, p.79], 0.50% (gellan gum) - 0.77% (methyl cellulose) by weight [Noble, Table 15, p.80], and 0.50% (gellan gum) - 0.77% (methyl cellulose) by weight [Noble, Table 16, p.82], which are ranges having sufficient specificity with the claimed range of 0.25-5.00% by weight; and
a salt [Noble, 0081];
wherein a portion of the combination of the reversibly thermogelling hydrocolloid with the reversibly gelling hydrocolloid comprises 0.05-8.00% by weight [Noble, 0084], which is a range that encompass the claimed range of 0.25-5.00% by weight.
Regarding claims 2-3, Noble teaches the vegan based egg white substitute product according to claim 1, further comprising a sulfur compound-containing substance (Black salt, as disclosed by Applicant on page 5, par.1, lines 1-2 of the instant specification) [Noble, 0300, 0306], wherein the sulfur compound-containing substance comprises a flavoring formulation (i.e., onion, yeast extract, both naturally contain sulfur compounds that deliver sulfur notes associated with eggs) and/or kala Namak (black salt) [Noble, 0300, 0306].
Regarding claim 4, Noble teaches the vegan based egg white substitute product according to claim 1, wherein the thermogelling hydrocolloid comprises methyl cellulose [Noble, 0083, 0177].
Regarding claim 5, Noble teaches the vegan based egg white substitute product according to claim 1, wherein the reversibly gelling hydrocolloid comprises carrageenan [Noble, 0083, 0177, 0207, 0234].
Regarding claim 6, Noble teaches the vegan based egg white substitute product according to claim 1, wherein the plant protein comprises a protein from peas, chickpeas, mung beans, hemp and/or field beans (fava/faba bean) [Noble, 0077].
Regarding claim 7, Noble teaches the vegan based egg white substitute product of claim 1, wherein the plant protein comprises a form of a protein concentrate, a protein isolate and combinations thereof [Noble, 0007, 0082].
Regarding claim 8, Noble teaches the vegan based egg white substitute product of claim 1 comprising 0.05% by weight - 15.0% by weight (encompass the claimed range of 0.1% by weight - 15.0% by weight) [Noble, 0168] of dissolved proteins, since the protein component in the vegan based egg white substitute product is in solution (dissolved) [Noble, 0060], and has the functional property of solubility of a natural egg [Noble, 0099] which is measured by protein analysis [Noble, 0136, 0157].
Regarding claim 9, Noble teaches the vegan based egg white substitute product of claim 1 discussed above, and further teaches the vegan based egg white substitute product comprise one additional ingredient consisting of a flavoring [Noble, 0079], the flavoring being selected from black salt (which is the salt (d) of claim 1) [Noble, 0081] in amount of 0.05% by weight - 1% by weight [Noble, 0080], and further teaches various examples where the vegan based egg white substitute product comprise black salt in amounts of 0.18% by weight [Noble, Table 13, p.79; Table 16, p.82], 0.13% by weight [Noble, Table 14, p.80], 0.20% by weight [Noble, Table 15, p.80; Table 16, p.82], and 0.14% by weight [Noble, Table 17, p.84], which are amounts that fall within the claimed range of 0.025% by weight - 0.8% by weight with sufficient specificity.
Regarding claim 10, Noble teaches the vegan based egg white substitute product of claim 1 comprise 0.1%-4% by weight [Noble, 0084] of the thermogelling and reversibly gelling hydrocolloids [Noble, 0083], and further teaches various examples where a vegan based egg white substitute product comprise a combination of a thermogelling hydrocolloid (methyl cellulose) with a reversibly gelling hydrocolloid (gellan gum, known in the art as a reversibly gelling hydrocolloid as evidenced by Keys [Keys, 0073], see claim 1, element (c) discussion above) in amounts of from 0.61% (gellan gum) - 0.66% (methyl cellulose) by weight [Noble, Table 14, p.79], 0.50% (gellan gum) - 0.77% (methyl cellulose) by weight [Noble, Table 15, p.80], and 0.50% (gellan gum) - 0.77% (methyl cellulose) by weight [Noble, Table 16, p.82], which are ranges that fall within the claimed range of 0.5%-3.5% by weight with sufficient specificity.
Regarding claim 12, Noble teaches the vegan based egg white substitute product of claim 1 further comprising 2.5% - 4.0% by weight of a vegetable oil [Noble, 0182, 0175], which are ranges that encompass and fall within the claimed ranges of 0.1 - 4.0% by weight of a vegetable oil.
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.
Claim(s) 11 is/are rejected under 35 U.S.C. 103 as being unpatentable over Noble et al. [WO2021116949A1], hereinafter Noble, and evidenced by Keys et al. [US20170020167A1], hereinafter Keys as applied to claim 1 above, and further in view of David [US20210219581A1].
Regarding claim 11, Noble teaches the vegan based egg white substitute product of claim 1 as discussed above, but is silent regarding the vegan based egg white substitute product further comprising 0.10% by weight - 1.00% by weight of sugar.
David teaches a vegan based egg white substitute product [David, abstract, 0011, 0026, 0077], vegan based egg white substitute product further comprising a flavoring agent [David, 0015], where flavoring agent includes sugar in amounts of from 0.10% by weight to 15.00% by weight [David, 0070], which is a range that encompass the claimed range of 0.10% by weight - 1.00% by weight.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include sugar in a vegan based egg white substitute product in amounts of from 0.10% by weight to 15.00% by weight as taught by David, into the vegan based egg white substitute product of Noble, because David teaches that various natural or artificial flavoring agents known to those skilled in the art may be added as desired and these known agents not only include sugar, and sweeteners, but also salt and black salt [David, 0070], which are some of the ingredients already used by Noble and by Applicant, and this would allow a skilled artisan to adjust the taste of the vegan based egg white substitute product (i.e., sweetness, saltiness flavor profile) based on desired taste of consumer.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to LUIS EUGENIO DIOU BERDECIA whose telephone number is (571)270-0963. The examiner can normally be reached Monday-Friday 7:30-4:30.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Erik Kashnikow can be reached at (571) 270-3475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/LUIS EUGENIO DIOU BERDECIA/Examiner, Art Unit 1792
/VIREN A THAKUR/Primary Examiner, Art Unit 1792
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