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 .
DETAILED ACTION
Status of the application
2. Claims 1-14 are pending in this office action.
Claims 1-14 have been rejected.
Claim Rejections - 35 USC § 103
3. 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.
4. 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.
5. 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.
6. Claim(s) 1-14 are rejected under 35 U.S.C. 103 as being unpatentable over Farress et al. US 2021/0392921 in view of NPL Wolfer et al. (in Meat Sci. Vol 145, pages 352-362, 2018).
7. Regarding claim 1, Farress et al. discloses a meat analogue product with a lower saturated fat content ([0004]), and this meat substitute product comprises a fat composition (e.g. canola oil, coconut fat flakes , fat dispersed emulsion gel flakes etc.) (at least in Example 2, Table 3), and at least one texturized protein ingredient e.g. texturized soy protein (at least in [0035], [0038], Example 2, Table 3).
However, Farress et al. is silent about wax in the meat substitute food composition.
NPL Wolfer et al. discloses that wax e.g. rice bran wax is used to replace animal fat , however, maintaining the taste, organoleptic property of the product (at least in 2.2.1, 3.3). It is known that saturated fat is detrimental. It would have been obvious that the use of wax will provide taste and organoleptic property by replacing animal fat (saturated) from animal protein composition, yet maintaining the good taste and organoleptic property.
One of ordinary skill in the art before the effective filling date of the claimed invention would have been motivated to modify Farress et al. with the teaching of NPL Wolfer et al. to consider inclusion of e.g. rice bran wax in order to make white oleogel with a fat like appearance and is inexpensive ( page 353, col 1 paragraph 3) to prepare meat substiitute product which is nutritionally qualitative healthy product with less/no saturated fat, yet maintaining the taste, organoleptic property of the product (at least in NPL Wolfer et al. in 2.2.1, 3.3).
8. Regarding claim 2, NPL Wolfer et al. discloses that wax e.g. rice bran wax is used to replace animal fat , however, maintaining the taste, organoleptic property of the product (at least in 2.2.1, 3.3).
9. Regarding claim 3, Farress et al. discloses that combinations of liquid oil e.g. canola oil and coconut fat flakes for Recipe E and canola oil plus “fat dispersed emulsion ”for Recipe F (Table 3), in combination meet claimed 2-25 wt.% by weight of said meat substitute product. It is to be noted that and as evidenced by applicant’s specification and as claimed in claim 4 (addressed below) that ‘fat composition’ is the sum of a ‘fat component’ plus (optionally) liquid oil wherein the ‘fat component’ is a combination of solid fat and liquid oil which is in addition to additional optional liquid oil (in PGPUB [0021]).
Farress et al. discloses the meat substitute product comprises a ‘fat composition’ e.g. canola oil, in an amount of 3.0 wt.% plus coconut fat flakes of Recipe in an amount of 6% by weight or Fat dispersed emulsion gel flakes in an amount of 6% by weight (at least in Example 2, Table 3, Recipe F).will make combined 9.0% by weight which is within the claimed range amount of 2-25% by weight of claim 3. It shows prima facie case of obviousness according to MPEP 2144.05. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) .
10. Regarding claim 4, as discussed for claim 3 above, is applicable here for claim 4. As discussed above, it is to be noted that and as evidenced by applicant’s specification that ‘fat composition’ is the sum of a ‘fat component’ plus (optionally) liquid oil wherein the ‘fat component’ is a combination of solid fat and liquid oil which is in addition to additional optional liquid oil (in PGPUB [0021]).
Farress et al. discloses that “fat dispersed emulsion gel flakes (Recipe C) is added to Recipe F (Table 3) and this is fat component and this fat component contains high oleic sunflower oil and it can be other vegetable oil including soybean oil also ([0041]) and solid fat can be few fats ([0041]) including shea butter as shea stearin ([0041], [0049], [0050]) which reads on ‘fat component’. The additional canola oil of Farress in the Recipe E and F is considered as additional liquid oil in addition to “fat component”.
Farress et al. discloses the meat substitute product comprises a ‘fat composition’ e.g. canola oil (Liquid oil) plus fat dispersed emulsion gel flakes (Table 3, Recipe F) wherein the fat dispersed emulsion gel flakes are Recipe C (Table 3) which contains Recipe A having sunflower oil ([0050], Tables 1, 2). Therefore, it meets claim limitation of “the fat component is consisting of solid fat and liquid oil” as claimed in claim 4.
11. Regarding claims 5, 6, claims 5,6 depend on claim 4. As discussed for claim 4 above, is applicable here for claims 5 and 6. Farress et al. discloses that solid fat may be from coconut oil, shea butter ([0041]) and stearin fraction as shea stearin is shea butter ([0050]). Therefore, Farress et al. discloses the meat substitute product comprises a ‘fat composition’ containing coconut fat flakes (Table 3 Recipe E) or fat dispersed emulsion gel flakes (Table 3, Recipe F) wherein the fat dispersed emulsion gel flakes are Recipe C (Table 3) which contains Recipe A having sunflower oil ([0050], Tables 1, 2) dispersed with different level of fat ([0050]) including “shea stearin (i.e. Shea butter) ([0050]).
12. Regarding claims 7, 8, depend on claim 4 and is applicable here. Farress et al. discloses the meat substitute product comprises a fat composition containing liquid oil which includes broadly many vegetable oils including canola oil etc. (at least in [0041], Example 2, Table 3, Recipe F). It is known that canola oil is liquid oil to meet claim 8.
13. Regarding claim 9, claim 9 depend on claim 4. As discussed for claim 4 above, is applicable here for claim 9 also. It is to be noted that and as evidenced by applicant’s specification and as claimed in claim 4 above that fat composition is the sum of a fat component plus optionally liquid oil.
It is to be noted that and as evidenced by applicant’s specification and as claimed in claim 4 (addressed below) that ‘fat composition’ is the sum of a ‘fat component’ plus (optionally) liquid oil wherein the ‘fat component’ is a combination of solid fat and liquid oil (in PGPUB [0021]).
Farress et al. discloses that solid fat component is coconut oil, shea butter, ([0041]) and stearin fraction as shea stearin is shea butter and liquid oil is soybean oil ([0050]). Therefore, liquid oil in ‘fat component’ which is “fat dispersed emulsion gel flakes from Recipe C (in [0041], [0049], [0050], Table 1, Table 3, Recipe F) is different than is different than additional liquid canola oil of burger composition (Table 3).
Farress et al. discloses liquid oil includes many vegetable oils including canola oil ([0041], Table 3).
Farress et al. discloses the meat substitute product comprises a ‘fat composition’ which is liquid oil e.g. canola oil, in an amount of 3.0 wt.% plus coconut fat flakes of Recipe E in an amount of 6% by weight or Fat dispersed emulsion gel flakes in an amount of 6% by weight (at least in Example 2, Table 3, Recipe F) will make combined 9.0% by weight which is within the claimed range amount of 2-25% by weight of claim 9. It shows prima facie case of obviousness according to MPEP 2144.05. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) .
14. Regarding claim 10, it is to be noted that and as evidenced by applicant’s specification and as discussed under claim 4 that the ‘fat component’ is a combination of solid fat and liquid oil and fat composition’ is the sum of a ‘fat component’ plus (optionally) additional liquid oil (in PGPUB [0021]). Farress et al. discloses that “fat dispersed emulsion gel flakes (Recipe C) are added to Recipe F (Table 3) and this is fat component and this fat component contains high oleic sunflower oil and it can be other vegetable oil including soybean oil also ([0041]) and solid fat can be few fats ([0041]) including shea butter as shea stearin ([0041], [0049], [0050]) which reads on ‘fat component’. The additional canola oil of Farress in the Recipe E and F is considered as additional liquid oil in addition to “fat component”.
Farress et al. is silent about wax and its amount in ‘fat component’.
NPL Wolfer et al. discloses that wax e.g. rice bran wax is used in an amount ranging from 2.5 and 10% by weight with soybean oil to make oleo gel which meets ‘1 to 10% by weight of fat component’ as claimed in claim 10 in order replace animal fat, however, maintaining the taste, organoleptic property of the product (at least in 2.1 and 2.2.1). Therefore, it meets the claimed range amount of ‘1-10% by weight of wax in the fat component of” claim 10. It shows prima facie case of obviousness according to MPEP 2144.05. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
One of ordinary skill in the art before the effective filling date of the claimed invention would have been motivated to modify Farress et al. with the teaching of NPL Wolfer et al. to consider inclusion of e.g. rice bran wax in order to make white oleogel with a fat like appearance and is inexpensive ( page 353, col 1 paragraph 3) to prepare meat substitute product which is nutritionally qualitative healthy product with less/no saturated fat, yet maintaining the taste, organoleptic property of the product (at least in NPL Wolfer et al. in 2.2.1, 3.3).
15. Regarding claim 11, Farress et al. discloses the meat substitute product comprises texturized protein which includes textured soy protein also (At least in Table 3 ).
16. Regarding claim 12, Farress et al. discloses that meat-analogues product and its composition (at least in Table 3, Recipe E, F).
Farress discloses
(a) the fat composition (i.e. fat component plus additional liquid oil = canola oil 3% by weight + coconut flakes in Recipe E or “Fat dispersed emulsion gel flakes 6% by weight in Recipe F =9% by weight total (Table 3) which meets claimed range amount of 2-25 wt.% of the meat substitute product of claim 12
(b) texturized protein is soy protein in an amount of 23.3 wt.% of the meat substitute product (Table 3). It is to be noted that claimed higher range amount is 20 wt.% of claim 12. It is to be noted that Farress also discloses that plant protein includes soy protein as soy protein meal, isolate etc. ([0035]-[0037]) which includes some fiber from 3.5-20 wt.% fiber (at least in [0036]). Therefore, in terms of protein, it would have been obvious that the correction amount for fiber amount can meet 10-20% by weight of protein as claimed in claim 12.
(c ) Farress et al. is silent about wax in the meat substitute food composition.
NPL Wolfer et al. discloses that wax e.g. rice bran wax is used to replace animal fat , however, maintaining the taste, organoleptic property of the product (at least in 2.2.1, 3.3). NPL Wolfer et al. also discloses that wax e.g. rice bran wax is used in an amount of 1:99 rice bran wax : liquid oil ( page 352, col 2 second paragraph).
Therefore, one of ordinary skill in the art would have been motivated to modify Farress et al’s composition containing oleogel as fat dispersed emulsion gel flakes (Recipe F , Table 3) in the gel particle which is added as 6% in Recipe F (Table 3) which means 6% of 3% = 0.018 wt.% i.e. about 0.22 wt.%.
However, the amounts of textured protein and fat dispersed emulsion gel flakes may vary depending on the degree of texturization ( in Farress et al. Table 3, e.g. textured soy protein 23.3 and white colored gel with fat like appearance ( in NPL Wolfer et al. page 353 col 1 fourth paragraph, last five lines). Therefore, it is optimizable.
Absent showing of unexpected results, the specific amount of wax and protein are not considered to confer patentability to the claims. As the taste, texture, color appearance etc. are variables that can be modified, among others, by adjusting the amount of wax , protein etc., the precise amount would have been considered a result effective variable by one having ordinary skill in the art at the time the invention was made. As such, without showing unexpected results, the claimed amount cannot be considered critical. Accordingly, one of ordinary skill in the art at the time the invention was made would have optimized, by routine experimentation, the amount of wax, protein in Farress et al. in view of NPL Wolfer et al., to amounts, including that presently claimed, in order to obtain the desired effect e.g. taste, texture, color, appearance etc. (In re Boesch, 617 F.2d. 272, 205 USPQ 215 (CCPA 1980)), since it has been held that where the general conditions of the claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. (In re Aller, 105 USPQ 223).
17. Regarding claim 13, NPL Wolfer et al. discloses that wax e.g. rice bran wax is used in an amount ranging from 2.5 and 10% by weight with soybean oil to make oleo gel which meets “ 1 to 10% by weight of fat component’ as claimed in claim 13 in order replace animal fat , however, maintaining the taste, organoleptic property of the product (at least in 2.1 and 2.2.1). It is to be noted that when NPL Wolfer et al. is used to modify Farress et al. and Farress et al. discloses that this oleo gel is equivalent to ‘emulsion gel matrix” ( [0049] of Farress et al.) and can be in the form of “dispersed emulsion gel flakes” ([0052] of Farress et al.) , as modified by NPL Wolfer et al. with wax and soybean oil containing oleo gel of NPL Wolfer et al. ( at least in 2.1.1) as discussed above. Therefore, “fat dispersed emulsion gel flakes” read on ‘fat chip’ or fat bead’ of claim 13.
18. Regarding claim 14, Farress et al. discloses that the dried ingredients can be added to textured protein , water followed by gel flakes and homogeneously mixed and then rest of the ingredients are added, which includes additional canola oil also, to form the meat substitute product.
Farress et al. is silent about wax in the meat substitute food composition.
NPL Wolfer et al. discloses that wax e.g. rice bran wax is used as oleo gel by combining with ‘soybean oil and wax’ to replace animal fat , however, maintaining the taste, organoleptic property of the product (at least in 2.2.1, 3.3). It is known that saturated fat is detrimental. It would have been obvious that the use of wax will provide taste and organoleptic property by replacing animal fat (saturated) from animal protein composition, yet maintaining the good taste and organoleptic property.
Therefore, one of ordinary skill in the art would have been motivated to consider the teaching of NPL Wolfer et al. to include wax to modify composition of fat component of Farress et al. (at least in [0041], [0049], [0050], Table 3, e.g. at least “gel flakes’ of Recipe F ) in order to reduce saturated fat in the meat substitute to make nutritionally qualitative product with less/no saturated fat , yet maintaining the white appearance , taste, organoleptic property of the product which is inexpensive i.e. cost effective(at least in NPL Wolfer et al. in page 353, col 1, paragraph 5, and in sections 2.2.1, 3.3)
One of ordinary skill in the art before the effective filling date of the claimed invention would have been motivated to modify Farress et al. ( at least in [0041], [0049], [0050], Table 3, e.g. at least “gel flakes’ of Recipe F )with the teaching of NPL Wolfer et al. to consider inclusion of e.g. rice bran wax in order to replace animal fat , however, maintaining the taste, organoleptic property of the product (at least in 2.2.1, 3.3).
If we consider, fat dispersed emulsion gel flakes represent modified wax containing oleo gel, it also meets the sequential method steps of claim 14.
It is also to be noted that Farress et al. disclose adding the ‘fat dispersed emulsion gel flakes’ is added to the ingredients and water ([0052]). NPL Wolfer et al. discloses that wax e.g. rice bran wax is used as oleo gel by combining with soybean oil (at least in 2.2.1). The ‘fat dispersed emulsion gel flakes’ of NPL Wolfer et al. can be considered as wax component containing composition which serves as ‘emulsion gel matrix” ([0049] of Farress et al.) .
Even if Futoshi et al. Farress et al. in view of NPL Wolfer et al. does not teach the addition of wax to the other ingredients as claimed in claim 14, however, Farress et al. in view of NPL Wolfer et al. teach substantially the same product produced by substantially the same method as instantly claimed by applicant; where the claimed and prior art products are produced by substantially identical processes, a prima facie case of obviousness has been established. To switch the order of performing process steps, i.e. the order of the addition of the ingredients into the final mixture, would be obvious absent any clear and convincing evidence and/or arguments to the contrary (MPEP 2144.04 [R-1]). “Selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results". Therefore, absent evidence to the contrary, it would have been obvious to one of ordinary skill in the art to add the wax to the other ingredients to make the meat substitute product.
Conclusion
19. Any inquiry concerning the communication or earlier communications from the examiner should be directed to Bhaskar Mukhopadhyay whose telephone number is (571)-270-1139.
If attempts to reach the examiner by telephone are unsuccessful, examiner’s supervisor Erik Kashnikow, can be reached on 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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/BHASKAR MUKHOPADHYAY/
Examiner, Art Unit 1792
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