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 status
Claims 1-13 and 15-16 filed 09/30/2024 are pending in the application and hereby examined on the merits.
Claim Objections
Claims 1 and 15-16 objected to because of the following informalities: an “and” should be inserted between “at 25 °C” and “at pH 7”. Appropriate correction is required.
Claim 16 is objected to because of the following informalities: “0,1” should read “0.1”. Appropriate correction is required.
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 1-13 and 15-16 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.
Claims 1 and 15-16 recite an equilibrium solubility in water above 0.1 g per 100 g at 25 °C at pH 7. It is unclear the 100 g is for water or for the solution. Appropriate correction is required.
Claims 2-13 depend from claim 1 and therefore necessarily incorporate the indefinite subject matter therein. Appropriate correction is required.
Claim 5 depends from claim 1 and recites “wherein the ratio of the plant protein contributed by the flour to the plant protein contributed by the protein concentrate is between 1 and 5”. There is insufficient antecedent basis for “the flour” and “the protein concentrate”. Further, it is unclear what the ratio is based upon. Is it weight ratio or molar ratio? For the purpose of examination, claim 5 is construed to depend from claim 4. Appropriate correction is required.
Claim 6 depends from claim 1 and recites “wherein the ratio of the plant protein to the base from the basic salt is between 2 and 20”. It is unclear what “the base from the basic salt” is referring to. Is it the basic salt?. It is also unclear whether “the plant protein” as recited means the plant protein from the plant protein source. Further, it is unclear what the ratio is based upon. Is it weight ratio or molar ratio? Appropriate correction is required.
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.
Claims 1-3, 7-8, 13 and 15-16 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Lewis US Patent Application Publication No. 2005/0196513 A1 (hereinafter referred to as Lewis).
Regarding claims 1-3, 7-8, 13 and 15-16, Lewis teaches an egg analogue product (e.g., an egg-like food product, 0001) comprising, inter alia, a plant protein source (e.g., a soy protein-containing component which is soy protein isolate, soy protein concentrate, or soybean flour, 0025), an oil or fat (0046), and a pH adjusting agent such as sodium hydroxide, sodium carbonate, potassium hydroxide, potassium carbonate, etc. (0057). The pH adjusting agent as disclosed by Lewis is listed in instant claim 7, and a carbonate is known to be able to liberate carbon dioxide gas upon acidification thus reading claim 8. Lewis teaches that the egg analogue product is a dry preparation in powder from (Abstract; 0017; 0042; 0082). Further, Lewis teaches that the egg analogue product is incorporated into food that normally contains eggs and partially or fully replaces the egg present therein (0070), thus reading on claim 15. Further, a step of mixing the plant protein source and the pH adjusting agent is taught by Lewis (0057).
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.
Claims 4-5 are rejected under 35 U.S.C. 103 as being unpatentable over Lewis as applied to claim 1 above.
Regarding claim 4-5, Lewis as recited above teaches that both soybean flour and soy protein concentrate are suitable protein sources for the egg analogue product, therefore, it would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have combined the two to form a new composition which acts as the soy protein source for the analogue product, for the reason that "it is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art." In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980). MPEP 2144.06.
On the ratio of the plant protein contributed by the flour to the plant protein contributed by the protein concentrate, the ratio would have depended on the amounts of the soybean flour and the soy protein concentrate. To this end, Lewis teaches that the egg analogue protein contains 10-50% a soy protein-containing component which is soy protein isolate, soy protein concentrate, or soybean flour (0036; 0025), that the soybean flour contains ~50% protein and the soy protein concentrate contains at least 65% protein (0027), and that in the case that soy protein concentrate is used in place of soybean flour, it will be present insufficient amounts as to impart the required quantities of soy protein into the final food (0037). Therefore, one of ordinary skill in the art would have been motivated to manipulate the amounts of soybean flour and soy protein concentrate in the egg analogue product so as to ensure that the final product contains the required quantiles of soy protein. As such, the ratio as recited in claim 5 is merely an obvious variant of the prior art.
Claims 6 and 9-12 are rejected under 35 U.S.C. 103 as being unpatentable over Lewis as applied to claim 1 above, and further in view of Lewis US Patent Application Publication No. 2020/0187531 A1 (cited in the IDS submitted 09/30/2024, hereinafter referred to as Lewis 2).
Regarding claims 6 and 9-12, Lewis as recited above teaches that the egg analogue product comprises 10-50% a soy protein-containing component, and a pH adjusting agent such as sodium hydroxide, sodium carbonate, potassium hydroxide, potassium carbonate, etc. Lewis further teaches that the egg analogue product comprises 15-50% soybean flour (0037), and 1-20% sunflower oil (0046). Those amounts encompass the ranges as recited in claim 11. 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).
Lewis is silent regarding the ratio of the soy protein to the pH adjusting agent as recited in claim 6, or the amount of the pH adjusting agent (e.g., carbonate or hydroxide salt) as recited in claims 9-12.
Lewis 2 in the same field of endeavor teaches an egg analogue product (e.g., a simulated egg food product in a dry mix form) comprising soybean flour and 0.2-1.8% a pH modifying agent such as sodium carbonate and potassium carbonate to effectively alkalinize the egg analogue product upon hydration (0015; 0101; 0104).
It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have modified Lewis by including 0.2-1.8% the pH adjusting agent (e.g., sodium and potassium carbonate) so as to effectively alkalinize the egg analogue product upon hydration.
The amount of the potassium carbonate as disclosed by Lewis 2 overlaps with the range as recited in claim 11. 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).
Lewis as modified with Lewis 2 would have resulted in an egg analogue product the weight ratio of plant protein (e.g., soy protein) to the pH adjusting agent of which reads on claim 6. Calculation: Lewis teaches that the egg analogue product comprises 15-50% soybean flour the protein content of which is ~50% (0037; 0027), and Lewis as modified by Lewis 2 teaches that the egg analogue product comprises 0.2-1.8% sodium or potassium carbonate, thus if the analogue product comprises 20% soybean flour which contains ~10% soy protein, and 1.8% sodium/potassium carbonate, then the weight ratio of soy protein to the carbonate is 10%/1.8% = ~5.6. 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).
Lewis as modified with Lewis 2 would have resulted in an egg analogue product the amount of the pH adjusting agent of which meets claims 9-10. Calculation: Lewis as modified by Lewis 2 teaches that the egg analogue product comprises 0.2-1.8% sodium or potassium carbonate by weight of the analogue product in dry mix form. Thus for potassium carbonate the molar weight of which is 138 g/mol, the mmol amount in 100 g analogue product is (0.2-1.8) x 1000 mg/138 mg/mmol = 1.4-13 mmol. 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).
Further regarding claim 12, Lewis as recited above teaches that sodium/potassium hydroxide is used to adjust the pH of the egg analogue product to the pH level of natural eggs (0057). Although Lewis 2 does not teach sodium/potassium hydroxide, Lewis 2 teaches that the amount of the pH modifying agents in the egg analogue product is effective to alkalinize the hydrated analogue product to a pH at which heating /cooking produces a simulated egg food product having organoleptic properties similar to those of the same food product but produced using hen's eggs. Routine trial and experimentation can be used with the teachings contained herein for guidance, in order to ascertain the appropriate amount of a particular pH modifying agent for any given formulation (0104). Therefore, one of ordinary skill in the art would have been motivated to manipulate the amount of sodium/potassium hydroxide in the egg analogue product so as to produce an alkalinized egg analogue product having organoleptic properties similar to those produced with real eggs. As such, the amount of hydroxide salt as recited in claim 12 is merely an obvious variant of the prior art.
Conclusion
Pertinent art
The prior art made of record and not relied upon is considered pertinent to applicant’s disclosure
Tetrick WO 2013/067453 A1, which teaches an egg substitute in dry blend form comprising plant protein concentrate (e.g., soybean or canola), a flour (e.g., soy flour), an oil (e.g., sunflower oil) and a base (e.g., potassium carbonate) (0019; 00116; 0078; 0072-0073; 0085-0086; 0109).
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/CHANGQING LI/Primary Examiner, Art Unit 1791
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