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 .
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.
Claim 60 is 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 60 recites “The mycelium-based food product of claim 52, wherein all of a), b), and c) are true”, yet claim 52 does not mention a), b), and c). It is unclear what limitations are being added in claim 60. If they are referring to the a), b), and c) of claim 55 then claim 60 should be amended to depend from claim 55.
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 31-42 and 45-60 are rejected under 35 U.S.C. 103 as being unpatentable over Pattillo (US 2020/0093167 A1) in view of Bennamoun (“Physical Behavior of Fungal Biomasses during Vacuum Agitated Contact Drying”).
Regarding Claim 31, Pattillo teaches a method for producing a mycelium-based food product (food products Abstract; mycelium Par. 0019)
comprising: subjecting a filamentous fungal biomass comprising fungal mycelia to a vacuum (removing water using vacuum suction Par. 0057)
Pattillo does not teach agitating the filamentous fungal biomass during at least part of the subjecting to produce the food product.
Bennamoun, in the same field of endeavor, teaches agitating the filamentous fungal biomass during at least part of the subjecting to produce the food product (drying fungal biomass in vacuum agitated contact dryer Abstract).
It would have been obvious to one having ordinary skill in the art, at the time of filing, to modify the invention of Pattillo with the agitation of Bennamoun. One would have been motivated to make this modification because using agitation significantly reduces drying time (Bennamoun Abstract).
Regarding Claim 32, Pattillo further teaches flavoring the filamentous fungal biomass (additives comprising natural flavors, oils, salts Par. 0066-0069)
Regarding Claim 33, Pattillo further teaches the flavoring comprises contacting the fungal biomass with a salt solution, a marinade, a cooking oil, or combination thereof (additives comprising canola oil Par. 0066-0069)
Regarding Claim 34, Pattillo further teaches the filamentous fungal biomass absorbs at least a portion of the salt solution, marinade, cooking oil, or combination thereof (adding plant oils increases fat content of end material Par. 0072). As the oils increase the fat content, one would assume the material is absorbing the oil.
Regarding Claim 35, Patillo teaches the flavoring occurs while the filamentous fungal biomass is under vacuum (oil in growth medium Par. 0066-0069; vacuum suction of biomass slurry Par. 0057). The flavoring is in the growth medium so present during the vacuum process.
Patillo does not teach the amount of the salt solution, marinade, cooking oil, or combination thereof absorbed is greater than the amount that would have been taken up in the absence of a vacuum.
Bennamoun does not teach the amount of the salt solution, marinade, cooking oil, or combination thereof absorbed is greater than the amount that would have been taken up in the absence of a vacuum.
As modified Patillo teaches method as claimed, including the cooking oil’s presence during vacuum subjection, one would have expected similar flavoring results as that of the present invention.
Regarding Claim 36, Pattillo teaches the salt solution, marinade, cooking oil, or combination thereof enter interstitial spaces of the filamentous fungal biomass (adding plant oils increases fat content of end material Par. 0072). As it increases the fat content, one would assume the material is absorbing the oil. As it is being absorbed, one would assume the oil would be entering the interstitial spaces as that is the only available space between the filaments of the filamentous fungal biomass. Further, as modified Patillo teaches method as claimed, one would have expected similar flavoring results as that of the present invention.
Regarding Claim 37, Pattillo further teaches dehydrating the filamentous fungal biomass (material then added to a fluidized bed dryer for full dehydration Par. 0059).
Regarding Claim 38, Pattillo further teaches the dehydrating is conducted at a temperature of no more than about 165°F (Dehydrate at 50°C [112°F] Par. 0188).
Regarding Claim 39, Pattillo further teaches the dehydrating is conducted for about 20 minutes to about 12 hours (Dehydrate for 120 minutes Par. 0188).
Regarding Claim 40, Pattillo further teaches the moisture content of the filamentous fungal biomass after dehydrating is about 1 wt% to about 45 wt% (Dehydrate to a moisture content of 4% Par. 0188).
Regarding Claim 41, Pattillo further teaches the moisture content of the filamentous fungal biomass after dehydrating is about 1 wt% to about 30 wt% (Dehydrate to a moisture content of 4% Par. 0188).
Regarding Claim 42, Pattillo further teaches treating the filamentous fungal biomass by a mechanical treatment and/or a texturing treatment prior to the subjecting (molded, pressed, rolled, extruded can happen before or during de-watering Par. 0056)
Regarding Claim 45, Pattillo does not teach the agitating is conducted while heating.
Bennamoun teaches the agitating is conducted while heating (heated wall Abstract)
It would have been obvious to one having ordinary skill in the art, at the time of filing, to modify the invention of Pattillo with the pressure of Bennamoun. One would have been motivated to make this modification because increasing temperature allows increasing the evaporated water and consequently reducing drying time (Abstract).
Regarding Claim 46, Pattillo does not teach the vacuum is at an absolute pressure of 3 kilopascals - 100 kilopascals.
Bennamoun teaches the vacuum is at an absolute pressure of 3 kilopascals - 100 kilopascals (100 mbar).
It would have been obvious to one having ordinary skill in the art, at the time of filing, to modify the invention of Pattillo with the pressure of Bennamoun. One would have been motivated to make this modification because using vacuum has the advantage to allow drying at low temperatures (Bennamoun Pg. 1 Col. 2 “Introduction” section).
Regarding Claim 47, Pattillo further teaches inactivating the filamentous fungal biomass prior to the subjecting (sizing the fungal biomass to form particles, and drying the particles to form the food ingredients Par. 0035). Applicant discloses size reduction as a method of inactivating the filamentous fungal biomass (Pg. 21 lines 15-20 of Specification filed 08/16/2024).
Regarding Claim 48, Pattillo further teaches the filamentous fungal biomass comprises a biomat or piece thereof (filamentous fungi mycelium comprises groups of connected cells fused end to end in filaments called hyphae 0019).
Regarding Claim 49, Pattillo further teaches the biomat or piece thereof comprises aerial hyphae. (aerial hyphae Par. 0176).
Regarding Claim 50, Pattillo further teaches the fungal mycelia comprises a fungal mycelium of a genus selected from the group consisting of Fusarium, Aspergillus, Trichoderma, Rhizopus, Ustilago, Hericium, Polyporus, Grifola, Hypsizygus, Calocybe, Pholiota, Calvatia, Stropharia, Agaricus, Hypholoma, Pleurotus, Morchella, Sparassis, Disciotis, Cordyceps, Ganoderma, Flammulina, Lentinula, Ophiocordyceps, Trametes,Ceriporia, Leucoagaricus, Handkea, Monascus, and Neurospora (Rhizopus Par. 0175).
Regarding Claim 51, Pattillo further teaches the fungal mycelia comprises a fungal mycelium selected from the group consisting of Ustilago esculenta, Hericium erinaceus, Polyporus squamosus, Grifola frondosa, Hypsizygus marmoreus, Hypsizygus ulmarius, Calocybe gambosa, Pholiota nameko, Calvatia gigantea, Agaricus bisporus, Stropharia rugosoannulata, Hypholoma lateritium, Pleurotus eryngii, Pleurotus ostreatus, Tuber borchii, Morchella esculenta, Morchella conica, Morchella importuna, Sparassis crispa, Fusarium venenatum, Fusarium strain flavolapis (ATCC Accession Deposit No. PTA- 10698), Disciotis venosa, Cordyceps militaris, Ganoderma lucidum, Flammulina velutipes, Lentinula edodes, Ophiocordyceps sinensis, Trametes versicolor, Ceriporia lacerata, Pholiota gigantea, Leucoagaricus holosericeus, Pleurotus djamor, Calvatia fragilis, Handkea utriformis, Rhizopus oligosporus, Neurospora crassa, and combinations thereof (neurospora crassa Par. 0189).
Regarding Claim 52, Pattillo and Bennamoun teach a mycelium-based food product produced by the method of claim 31.
Pattillo teaches a method for producing a mycelium-based food product (food products Abstract; mycelium Par. 0019)
comprising: subjecting a filamentous fungal biomass comprising fungal mycelia to a vacuum (removing water using vacuum suction Par. 0057)
Pattillo does not teach agitating the filamentous fungal biomass during at least part of the subjecting to produce the food product.
Bennamoun, in the same field of endeavor, teaches agitating the filamentous fungal biomass during at least part of the subjecting to produce the food product (drying fungal biomass in vacuum agitated contact dryer Abstract).
It would have been obvious to one having ordinary skill in the art, at the time of filing, to modify the invention of Pattillo with the agitation of Bennamoun. One would have been motivated to make this modification because using agitation significantly reduces drying time (Bennamoun Abstract).
Regarding Claim 53, Pattillo further teaches the mycelium-based food product is a whole-cut meat analog food product, a ground meat analog food product, a meatloaf analog food product, a burger patty analog food product, a shredded meat analog food product, or a meat jerky analog food product (convert fungal mycelium into an ingredient used to make burgers, sausages, patties, nuggets Par. 0039)
Regarding Claim 54, Patillo further teaches the mycelium-based food product is a meat analog food product (fungal mycelium used in meat analogues Par. 0020).
Patillo does not teach the food product has a chewiness analogous to a meat jerky product.
Bennamoun does not teach the food product has a chewiness analogous to a meat jerky product.
Modified Pattillo teaches the method of producing the product as claimed in claim 52. Therefore, one would expect the product of modified Pattillo to have similar chewiness to the present invention.
Regarding Claim 55, Pattillo further teaches at least one of the following is true :a) the meat analog food product comprises less than about 200 milligrams of sodium per 28 grams of food product; b) the meat analog food product comprises no more than 15 grams of sugar per 28 grams of food product; and/or c) the meat analog food product comprises no more than about 10 wt.% sugar content (shelf stable food ingredient comprises sodium in the amount of between 20 mg/kg and about 1500 mg/kg Par. 0114).
Patillo does not teach the mycelium-based food product has a shelf life of at least about two weeks.
Bennamoun does not teach the mycelium-based food product has a shelf life of at least about two weeks.
Modified Pattillo teaches the method of producing the product as claimed in claim 52. Therefore, one would expect the product of modified Pattillo to have a similar shelf life to the present invention.
Regarding Claim 56, modified Pattillo does not teach the mycelium-based food product has a shelf life of at least about six months.
Modified Pattillo teaches the method of producing the product as claimed in claim 52. Therefore, one would expect the product of modified Pattillo to have a similar shelf life to the present invention.
Regarding Claim 57, modified Pattillo does not teach the mycelium-based food product has a water activity of between about 0.35 and about 0.85.
Modified Pattillo teaches the method of producing the product as claimed in claim 52. Therefore, one would expect the product of modified Pattillo to have a similar water activity to the present invention.
Regarding Claim 58, modified Pattillo does not teach the mycelium-based food product has a water activity of no more than about 0.45.
Modified Pattillo teaches the method of producing the product as claimed in claim 52. Therefore, one would expect the product of modified Pattillo to have a similar water activity to the present invention.
Regarding Claim 59, Pattillo further teaches less than about 140 milligrams of sodium per 28 grams of food product (shelf stable food ingredient comprises sodium in the amount of between 20 mg/kg and about 1500 mg/kg Par. 0114).
Regarding Claim 60, Claim 52 does not claim any limitations notated as a), b), or c), therefore as modified Pattillo teaches Claim 52 as seen above, claim 60 is obvious.
Claims 43-44 are rejected under 35 U.S.C. 103 as being unpatentable over Pattillo in view of Bennamoun, further in view of Feng (“Evaluation of innovative immersion vacuum cooling with different pressure reduction rates and agitation for cooked sausages stuffed in natural or artificial casing”).
Regarding Claim 43, modified Patillo teaches the method of claim 31, but does not teach the agitating is conducted under refrigeration.
Feng, in the same field of endeavor, agitating under refrigeration (vacuum cooling with agitation Title, Abstract).
It would have been obvious to one, at the time of filing, to apply the vacuum cooling with agitation of Feng subsequent the vacuum agitated drying of modified Patillo. One would have been motivated to make this modification to preserve the quality of the food product (Feng Pg. 77 Section 1 column 2).
Regarding Claim 44, modified Pattillo does not teach the agitating is conducted at a temperature of no more than about 40°F.
Feng further teaches the agitating is conducted at a temperature of no more than about 40°F (food cooled to 4°C Abstract, Pg. 79 Par. 1). Though Feng does not teach the set temperature of the system, as the product is cooled to 4°C, it can be assumed that it is 4°C or below.
It would have been obvious to one, at the time of filing, to apply the cooling of Feng to the vacuum and agitation of modified Patillo. One would have been motivated to make this modification to preserve the quality of the food product (Feng Pg. 77 Section 1 column 2).
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 31-51 (in particular claim 31) are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-7 and 30 (in particular claims 1, 3 and 6) of U.S. Patent No. 12,041,949. Although the claims at issue are not identical, they are not patentably distinct from each other because
U.S. Patent No. 12,041,949 discloses a method for producing a mycelium-based food product comprising: subjecting a filamentous fungal biomass comprising fungal mycelia to a vacuum and agitating the filamentous fungal biomass during at least part of the subjecting to produce the food product (Claims 1, 3, and 6)
Claims 31-51 (in particular claim 31) are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-28 (in particular claim 1) of U.S. Patent No. 12,089,615 in view of Bennamoun. Although the claims at issue are not identical, they are not patentably distinct from each other because
U.S. Patent No. 12,089,615 discloses a method for producing a mycelium-based food product comprising: subjecting a filamentous fungal biomass comprising fungal mycelia to a vacuum and (Claim 1).
U.S. Patent No. 12,089,615 does not disclose agitating the filamentous fungal biomass during at least part of the subjecting to produce the food product.
Bennamoun, in the same field of endeavor, teaches agitating the filamentous fungal biomass during at least part of the subjecting to produce the food product (drying fungal biomass in vacuum agitated contact dryer Abstract).
It would have been obvious to one having ordinary skill in the art, at the time of filing, to modify the invention of Pattillo with the agitation of Bennamoun. One would have been motivated to make this modification because using agitation significantly reduces drying time (Bennamoun Abstract).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ARIEL M RODGERS whose telephone number is (571)272-7857. The examiner can normally be reached Monday - Friday 9:00 am - 6:00 pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Erik Kashnikow can be reached at 5712703475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/A.M.R./Examiner, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792
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