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
Note, claims 16-18 were inadvertently listed with the Group II invention. Claims 16-18 are considered part of the Group I invention because they are directed to a method of making a fibrous fungus-containing food product and ultimately depend from claim 1.
Applicant's election with traverse of Group II, claims 13-15, 19 and 20 in the reply filed on May 12, 2026 is acknowledged. The traversal is on the grounds that, as amended, “all claims possess unity of invention.” This is not found persuasive because both Groups I (claims 1-12 and 16-18 directed to a method of making a fibrous fungus-containing food product) and II (claims 13-15, 19 and 20 directed to a fibrous fungus-containing food product) require the technical feature of a fungus-containing food product comprising a scaffold and mycelium of at least one fungus grown along and through the scaffold wherein the scaffold is made from elongated pieces of textured protein product. This technical feature is not a special technical feature as it does not make a contribution over the prior art in view of Denkel et al. (WO 2020 164680).
The requirement is still deemed proper and is therefore made FINAL.
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 19 and 20 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 claim 19, the recitation “first phase is substantially composed of one or more elongated pieces” and “second phase is not substantially composed of the one or more elongated pieces” renders the claim indefinite. The term “substantially” in claim 19 is a relative term which renders the claim indefinite. The term “substantially” 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. It is not clear if substantially means 50% or more or if substantially means 99.9%. Clarification is requested.
Claim 20 is rejected because it is dependent from a rejected base claim.
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 13-15, 19 and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Manchuliantsau (WO 2021/195175 A1- cited on IDS filed May 28, 2024).
Regarding claim 13, Manchuliantsau discloses a fibrous meat analog made by a method comprising: (a) subjecting raw ingredients (i.e., pulse, oilcakes, spent grains, or distiller’s grains to extrusion to obtain a porous structure (i.e., scaffold or two or more elongated pieces); (b) fermenting the extruded raw ingredients in the presence of fungi to convert carbohydrates into additional protein and increase the total protein content while producing mycelium from the fungi; and (c) extruding the fermented raw ingredients to accomplish a kill step and create a fibrous texture similar to meat ([0027], [0038]-[0053]).
Manchuliantsau discloses, in step (a), the moisture in the barrel is in the range of 5-40% ([0040]). Here, at a moisture level of 40%, the extrusion process would be considered “high moisture.”
Regarding claims 14, 15, 19 and 20, Manchuliantsau discloses all of the claim limitations as set forth above. Given Manchuliantsau disclose a fibrous meat analog comprising a fibrous texture and made by a process substantially similar to the presently disclosed invention, inherently the fibrous meat analog would (a) be composed of at least two different phases distinguishable by the human eye wherein a first phase is substantially composed of one or more elongated pieces and the second phase is comprising fungal mycelium and carbohydrates; and (b) display at least one of the properties recited in claim 15.
Claims 13-15, 19 and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Le et al. (WO 2021/030412 – cited on IDS filed May 28, 2024) in view of Zhang et al. ("Changes in conformation and quality of vegetable protein during texturization process by extrusion" - Critical Reviews in Food Science and Nutrition, Vol. 59, No. 20, (2019), pp. 3267-3280).
Regarding claim 13, Le et al. disclose a food product comprising textured protein substrates connected by mycelium from fungi wherein the mycelium is grown inside and/or outside of the textured substrate (Abstract, [0006], [0013], Fig. 1). Le et al. disclose multiple textured protein substrates can be connected to form a larger food product. Here, multiple textured protein substates is considered to represent a scaffold of two or more elongated pieces (Fig. 2).
Le et al. disclose the food product is made by inoculating the textured protein substrate with mycelium-producing fungi to grow the mycelium and form a matrix withing and/or around the substrate ([0017], [0021]).
While Le et al. disclose textured protein substrates, the reference is silent with respect to wet textured protein substrates.
Le et al. disclose any textured substrate suitable for us in food products and which has a structure suitable for receiving mycelium growth can be used ([0014]). Le et al. disclose
Le et al. disclose where the bound textured substrate can be used as a meat substitute, meat analogue or seafood analogues ([0006]). Le et al. disclose textured vegetable protein (TVP) is an example of a textured protein substrate ([0014]). Le et al. disclose TVP is formed by extrusion. Le et al. does not disclose high moisture extrusion cooking.
Zhang et al. teach producing TVP by extrusion (Abstract). Zhang et al. teach TVP can be dividied into two categories: low moisture TVP (LM-TVP) and high moisture TVP (HM-TVP) (p. 3269/Overview of food extrusion technology for TVP production). Zhang et al. teach high moisture extruders systems have a longer cooling die than low moisture, allowing for fibrous structure formation at relatively low temperature ((p. 3269/Overview of food extrusion technology for TVP production). Zhang et al. teach HM-TVP possesses a texture similar to animal meat with a rich fibrous and dense structure, strong elasticity and high moisture content (p. 3269/Overview of food extrusion technology for TVP production). Zhang et al. also teach some nutrients and bioactive substances can be maximally retained due to the relatively low temperature achieved with high moisture extrusion (p. 3269/Overview of food extrusion technology for TVP production).
Le et al. and Zhang et al. are combinable because they are concerned with the same field of endeavor, namely, textured protein. It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the present application to have used a textured protein substrate (TVP) made by high moisture extrusion because Zhang et al. teach HM-TVP is a known method of making TVP and HM-TVP possesses a texture similar to animal meat with a rich fibrous and dense structure, strong elasticity and high moisture content.
Regarding claims 14, 19 and 20, modified Le et al. disclose all of the claim limitations as set forth above. Given combination of Le et al. and Zhang et al. disclose a food product composition as presently claimed, inherently the composition would be comprised of at least two different phases distinguishable by the human eye. See Figure 2 where the textured protein substrate is distinguished from the fungal mycelium and carbohydrates (structure 240 of Figure 2, [0045]-[0046]).
Le et al. disclose the textured protein substrate comprises carbohydrate ([0026]).
Regarding claim 15, modified Le et al. disclose all of the claim limitations as set forth above. Given Le et al. disclose a food product comprising textured protein substrate bonded by fungal mycelium and substantially similar to the present invention, inherently the food product would display one of the claimed properties of i-iii.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ELIZABETH A GWARTNEY whose telephone number is (571)270-3874. The examiner can normally be reached M-F: 9 a.m. - 5 p.m. EST.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Curtis Mayes can be reached at 571-272-1234. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
ELIZABETH A. GWARTNEY
Primary Examiner
Art Unit 1759
/ELIZABETH GWARTNEY/ Primary Examiner, Art Unit 1759
Prosecution Insights