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 § 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 1-2, 4-5, and 7 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Windschauer et al. (US 2014/0234509 A1).
With respect to Claim 1, Windschauer et al. teaches edible compositions that can be used to supplement the flavor of a bitter food composition, [0006] and in one specific embodiment, a cheese flavored composition for meat products. [Example 4] The cheese product taught by the invention of Example 4 can be supplemented with a vitamin mixture comprising 45% of the total cheese product [Table 7-8] which is added to a greater food composition comprising 22.5% of the vitamin emulsion. [Table 9]
The amount of choline, calcium, and magnesium is 38, 100, and 20 mg respectively, out of a total of about 240 mg vitamin mixture. Alternatively, Windschauer et al. teaches that the product can be formulated without the addition of vitamins, [0081] resulting in a cheese composition comprising 0% by mass of choline, calcium, and magnesium. Windschauer et al. also teaches that the cheese composition can be placed onto a heated meat to form a cheese sauce. [0080]
One of ordinary skill in the art would have been able to conceive of an embodiment of the invention taught by Windschauer et al. wherein the cheese would comprise no vitamins and the sauce would comprise the vitamin mixture. The invention taught by this embodiment would comprise a cheese with less than the recited amount of choline, magnesium, and calcium with respect to the total amount of each and a sauce with greater than the amount recited with respect to each.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the teaching of Windschauer et al. in order to develop a food composition comprising a cheese and a sauce, where the vitamins were included in the sauce, thereby providing the total amount of choline, magnesium, and calcium in the cheese is less than 5%, 10%, and 5% respectively, of the total amount of each, and wherein the sauce comprises greater than 40%, 40%, and 60% of choline, magnesium, and calcium by mass as compared to the total amount of each, respectively, thereby rendering claim 1 obvious.
With respect to Claim 2, Windschauer et al. teaches the invention recited in claim 1, as described above. Windschauer et al. teaches that potassium may be added to the composition in the form of the supplement, [0038] but does not teach a specific amount of potassium in the cheese composition. Table 8 teaches a wide variety of nutrient amounts, and Windschauer et al. provides a motivation for determining the optimum amount of potassium, stating that one would have added potassium in an amount that is nutritionally acceptable. [0038]
MPEP 2144.05 II states, “Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical”. The composition taught by Windschauer et al., supplemented with potassium would have comprised some amount of potassium, and one would have been motivated to optimized the amount to within the amount recited in claim 2.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the teaching of Windschauer et al. in order to develop a composition according to claim 1, wherein potassium is added to the composition at greater than or equal to 0.3%, thereby rendering claim 2 obvious.
With respect to Claim 4, Windschauer et al. teaches the invention recited in claim 1, as described above. Additionally, Windschauer et al. teaches edible compositions that can be used to supplement the flavor of a greater food composition, [0006] and in one specific embodiment, a cheese flavored composition for meat products. [Example 4] Windschauer et al. teaches that the product can be formulated without the addition of vitamins, [0081] resulting in a cheese composition wherein the choline, magnesium, or calcium is not being added by way of a food additive. [0038] The resulting food product, including the meat to which the cheese product is added, would have been designed to meet a predetermined nutritional standard due to the efforts to control the nutritional profile of the invention. Therefore, Windschauer et al. renders obvious the invention recited in claim 4.
With respect to Claim 5, Windschauer et al. teaches the invention recited in claim 1, as described above. Additionally, Windschauer et al. teaches that potassium can be added to the compositions in the form of a supplement. [0038]
With respect to Claim 7, Windschauer et al. teaches the invention recited in claim 1, as described above. Additionally, Windschauer et al. teaches the amount of sodium chloride in the cheese food composition is 10 mg. [Table 8] The resulting percentage of sodium chloride in the composition would have been 0.4%, which is less than 0.5%.
Claims 3 and 6 are rejected under 35 U.S.C. 103 as being unpatentable over Windschauer et al. (US 2014/0234509 A1), as applied to claims 1 and 5 respectively, in view of Henderson, Jr. et al. (US 2020/0397021 A1).
With respect to Claim 3, Windschauer et al. teaches the invention recited in claim 1, as described above. Additionally, Windschauer et al. teaches that the cheese can be added to a heated meat, [0081] but does not specify the type of meat.
Henderson Jr. et al. teaches a protein composition designed to mimic animal proteins through the use of microbial cells. [0003-4] The protein composition may be comprised of yeast cells [0043] and may be used to imitate chicken. [0086] Additionally, the lipid component can provide a source of choline [0130] and the lipid can comprise 0.1-95% of the total composition. [0131]
Windschauer et al. and Henderson Jr. et al. exist within the same field of endeavor in that they both teach the production of nutritionally supplemented food compositions. Where Windschauer et al. teaches a cheese flavored product that can be used on a meat product, Henderson Jr. et al. teaches a meat analogue product that mimics chicken. Additionally, it would have been obvious to use the meat mimic taught by Henderson et al. due to the ability to control for the nutritional profile.
Henderson Jr. et al. does not teach a specific amount of choline, but does teach a range of lipids comprising choline, and Windschauer et al. teaches that choline would be a desirable nutritional supplement. MPEP 2144.05 II states, “Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical”. Therefore, it would have been obvious to optimize the amount of choline in the imitation chicken taught by Henderson Jr. et al. for use in the invention taught by Windschauer et al.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the teachings of Windschauer et al. in view of Henderson Jr. et al. to have developed the invention recited in claim 1, wherein the invention further comprises imitation chicken, wherein the imitation chicken comprises 30% or more choline by mass of the total food composition, thereby rendering claim 3 obvious.
With respect to Claim 6, Windschauer et al. teaches an invention that anticipates the invention recited in claim 5. Additionally, Windschauer et al. teaches that the cheese can be added to a heated meat, [0081] but does not specify the type of meat.
Henderson Jr. et al. teaches a protein composition designed to mimic animal proteins through the use of microbial cells. [0003-4] The protein composition may be comprised of yeast cells [0043] and may be used to imitate chicken. [0086] Additionally, the lipid component can provide a source of choline [0130] and the lipid can comprise 0.1-95% of the total composition. [0131]
Windschauer et al. and Henderson Jr. et al. exist within the same field of endeavor in that they both teach the production of nutritionally supplemented food compositions. Where Windschauer et al. teaches a cheese flavored product that can be used on a meat product, Henderson Jr. et al. teaches a meat analogue product that mimics chicken. Additionally, it would have been obvious to use the meat mimic taught by Henderson et al. due to the ability to control for the nutritional profile.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the teaching of Windschauer et al. in view of Henderson Jr. et al., to have developed the invention recited in claim 5, wherein the food composition further comprises imitation chicken supplemented with choline by way of yeast or a food additive, thereby rendering claim 6 obvious.
Conclusion
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/J.C.M./Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791
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