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 Claims
Claims 1-10 are cancelled. Claims 11-22 are pending and currently under examination and the subject matter of the present Office Action.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 09/25/2024 is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement was considered by the Examiner.
Claim Objections
Claims 13 and 19-20 are objected to because of the following informalities:
Claim 13 recites “first mixing mixing vessel sodium alginate, calcium sulfate, diphosphates and calcium phosphate” which appears to be missing prepositions.
Claim 13 uses the term “then” multiple times to indicate succeeding steps. This term is not typically used in claims as it makes the claims appear narrative.
Claims 19 and 20 recite Pleurotus, Agaricus, and Pleurotus eryngii, which are scientific terms and should be italicized.
Appropriate corrections are 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 11-22 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 11 and 21 recite “other ingredients” which is indefinite. The Specification relates that “other ingredients can be selected according to the nutritional requirements of the respective animal” and “other ingredients can be selected from sodium alginate, calcium sulfate, diphosphates, calcium phosphate, vegetables, plant proteins, water”. However, the phrase “can be selected…” and “can be selected according to the nutritional requirements of the respective animal” do not guide one skilled in the art to what are the required “other ingredients” being claimed. Just because X can be an “other ingredient” does not give guidance to the metes and bounds of the claimed “other ingredient. Furthermore, the nutritional requirements of different animals varies and does not provide any definition or scope for “other ingredients”. As such, the metes and bounds of “other ingredients” is unclear making these claims indefinite.
Claim 13 depends from Claim 11, and recites “further comprising” followed by steps of mixing components, etc. However, it appears that Applicant meant to expand on the 2nd and 3rd steps in Claim 11, and not to add further to the steps already recited in Claim 11. For compact prosecution and prior art search, the Examiner will interpret Claim 13 as such, however, correction is necessary.
All claims depending from Claims 11, 13, and 21 are also rejected for indefiniteness.
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 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.
Claims 11-14, 18-19 and 21-22 are rejected under 35 U.S.C. 103(a) as being unpatentable over Chevrolet, G. (US 4,663,171), in view of Lim et al. (KR 2014-0118206 A, Machine Translated in IP.com), hereinafter Lim, and Jayachithra, J. (SKILL BASED ELECTIVE-II-MUSHROOM CULTIVATION. 2021. Obtained from URL <https://gacbe.ac.in/pdf/ematerial/18BBO47S-U5.pdf> on 06/25/2026).
Chevrolet discloses foodstuff composition containing edible mushroom, gelifying agent such as pectin or alginate, in combination with calcium ions, proteins, flavorings, and water (Abstract; Claim 1). The Examiner gives the broadest reasonable interpretation for the “mushroom” taught by Chevrolet to encompass the mushroom fruiting bodies.
Regarding Claims 11 and 21, Chevrolet teaches an especially advantageous embodiment wherein an aqueous solution or dispersion of alginate and complexing agent for calcium ions, preferably sodium pyrophosphate, and edible mushrooms are added and mixed to give a homogenous mass, after which texturizing agent, and flavorings are added; the mass is treated with an aqueous suspension of calcium sulfate, and shaped by extrusion, pouring, or molding (Col. 4, lines 28-42). Chevrolet does not require heating, and that the mass can be hot or cold prior to gelation, with the calcium inducing a delayed gelation allowing the shaping by extrusion, pouring, or molding (Col. 2, lines 43- 54; Col. 4, lines 28-54).
While Chevrolet does not expressly teach chopping the mushroom, the art teaches using ground form (Col. 4, line 45). It is well within the skills of one of ordinary skill in the art to modify the size of the mushroom pieces depending on the desired texture of the foodstuff and for the desired application.
In the event that Chevrolet does not render the chopped mushroom obvious, Lim teaches the feature.
Lim teaches feed additive for domestic animals, wherein the comprising mushroom by-product, resulting in a low cholesterol feed (Abstract; [0001]). Lim teaches the mushroom fruiting body or the mushroom by-products are preferably cut into a size of about 3 to 7 mm, and the truncated bodies or by-products were dried (p. 4, 1st and 2nd paragraphs). Lim expressly teaches an example where the mushroom by-products were cut to 5 mm, prior to pulverizing and drying for mixing with the feed composition comprising corn powder, soybean meal, and wheat bran etc. (Examples 1 and 2). As such, Claims 18 and 22 are also obvious.
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to cut the mushroom into a size of about 3 to 7 mm per the teachings of Lim to prepare as an intermediate and packed in the method of Chevrolet, that can be further processed if the intended use is for animal feed. One would be motivated to chop the mushrooms in the dimensions taught by Lim which produces pieces that can be efficiently dried and pulverized, and is a useful size intermediate for application in animal feed.
Chevrolet does not expressly teach deep-freezing the hardened mass.
Jayachithra is in the mushroom field and understands the need for storing mushroom properly due to their high rate of respiration, and browning at high temperature (p. 1, Introduction). Jayachithra teaches deep-freezing mushrooms will preserve for months or even years (p. 3, last sentence to p. 4, 1st sentence).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to combine the teachings of Jayachithra with Chevrolet and deep-freeze the mushroom-containing composition of Chevrolet to preserve the mushroom components for months or years. Deep freezing is a known technique in the art, hence, one with ordinary skill in the art would have applied the known technique of deep with high expectations of success that t using this technique would lead to better preserved mushroom-containing compositions. Applying a known technique to a known method ready for improvement to yield predictable results is the rationale supporting obviousness. See MPEP § 2143 and KSR International Co. v. Teleflex Inc., 550 U.S. 398, 82 USPQ2d 1385, 1395-97 (2007).
Regarding Claim 12, Chevrolet teaches an embodiment that does not require a temperature, i.e. the mass is hot or cold, when treated with calcium sulfate, an molded prior to gelation, which implies and/or encompass room temperature, rendering the 25 ˚C in the claimed range obvious (Col. 4, lines 28-54).
Regarding Claim 13, first with regards to the mixing vessel, where one performs the mixing of the components does not materially affect the components. It is the Applicant’s burden to show that the mixing vessel is also an integral part of the method claim, but as recited, the vessel is not a patentable feature. Similarly, it appears that there is no criticality to the appliance or instrument used to fill the mold. As such, unless It is the Applicant shows that the vacuum filler is also an integral part of the method claim, the vacuum filler is not considered a patentable feature.
Regarding the claimed steps in Claim 13, Chevrolet teaches an especially advantageous embodiment first preparing an aqueous solution or dispersion of alginate, calcium sulfate, and complexing agent for calcium ions - preferably sodium pyrophosphate, which is the same as diphosphate, which reads on the first two steps in Claim 13 (Col. 4, lines 28-31; Examples 1 and 2); then the mushrooms are added (Col. 4, line 32); texturing agent and flavorings are added, wherein the texturing agent consist of proteins (Col. 3, lines 61-62; Col. 4, line 33-35); then the mass is treated with a suspension of calcium sulphate (Col. 4, lines 35-36); the mass is then given form by extrusion, pouring or molding before gelling, for example as cubes for mixing with meat preparation, which also implies that unmolding (Col. 4, lines 38-55); and finally, the products are sterilized and packaged (Col. 4, lines 57-1).
Regarding the packaging for transport or sales, Jayachithra also teaches packaging in wooden cases with compartments, in bamboo baskets for transport, and vacuum cooling systems etc. (p. 3, 4th paragraph; p. 4, 3rd paragraph). As above, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to combine the teachings of Jayachithra with Chevrolet and package the mushroom-containing composition of Chevrolet as appropriate for use, storage, or transport. Packaging in units for transport is a known technique in the art, and applying a known technique to a known method ready for improvement to yield predictable results is the rationale supporting obviousness. See MPEP § 2143 and KSR International Co. v. Teleflex Inc., 550 U.S. 398, 82 USPQ2d 1385, 1395-97 (2007).
Regarding Claim 14, Chevrolet teaches addition of vegetables or extracts, such as red beetroot juice (Col. 3, lines 8-12; Examples 1 and 2)
Regarding Claim 19, Lim teaches oyster mushroom, which is under the Pleurotus genus (p. 3, last paragraph). Chevrolet does not teach any particular genus of mushroom. Lim teaches oyster mushroom to be a suitable component for animal feed. It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to take guidance from Lim and use Pleurotus if the application of the mushroom-containing composition of Chevrolet is intended for animal feed. The strongest rationale for combining references is a recognition, expressly or impliedly in the prior art or drawn from a convincing line of reasoning based on established scientific principles or legal precedent, that some advantage or expected beneficial result would have been produced by their combination. In re Sernaker, 702 F.2d 989, 994-95, 217 USPQ 1, 5-6 (Fed. Cir. 1983). See also Dystar Textilfarben GmbH & Co. Deutschland KG v. C.H. Patrick, 464 F.3d 1356, 1368, 80 USPQ2d 1641, 1651 (Fed. Cir. 2006).
Claim 15 is rejected under 35 U.S.C. 103(a) as being unpatentable over Chevrolet in view of Lim and Jayachithra, as applied to Claims 11-14, 18-19 and 21-22 above, and in further view of Nielsen et al. (US 8,980,349 B2), hereinafter Nielsen.
Chevrolet is silent on the emulsification period.
Regarding Claim 15, Nielsen is in the related field, teaching a process for preparing a food product with casing, wherein the casing paste comprises alginate and calcium salts inter alia calcium phosphate and calcium sulphate (Abstract; Claims 1-3). Nielsen teaches that the time between mixing of the sparingly soluble calcium salt and the alginate and application of the paste, which the Examiner interprets to encompass the emulsification period, is not more than 20 minutes, and is preferably as short as practicable to avoid significant gelling prior to applying to the material being cased in a casing (Col. 3, lines 20-36; Claim 4).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to combine the teachings of Nielsen to the method of Chevrolet, and keep the emulsification time after mixing the alginate with the calcium salts to be 20 mins or less, or as short as possible to prevent significant gelling prior to applying to the mushroom-containing composition that is being molded in the method of Chevrolet.
Claims 16-17 are rejected under 35 U.S.C. 103(a) as being unpatentable over Chevrolet in view of Lim and Jayachithra, as applied to Claims 11-14, 18-19 and 21-22 above, and in further view of Torcatis, P. (US 2006/0019016 A1), hereinafter Torcatis.
Chevrolet is silent on the hardening time.
Torcatis also teaches food products that are gelled using sodium alginate, and calcium salts mixed with raw food material (Abstract; Claim 1).
Regarding Claims 16-17, Torcatis teaches different examples of mixing methods (Table III). All the methods require leaving the composition to stand for 1 to 12 hours to gel prior to unmolding, which render the claimed times of at least 1 h, and at least 10 hrs, obvious.
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to leave the gelling composition of Chevrolet for 1 to 12 hours per the guidance of Torcatis. It would be well within the skills of the artisan to check if longer time is necessary based on observation of the completion of gelling. Applying a known technique to a known method ready for improvement to yield predictable results is the rationale supporting obviousness. See MPEP § 2143 and KSR International Co. v. Teleflex Inc., 550 U.S. 398, 82 USPQ2d 1385, 1395-97 (2007).
Claim 20 is rejected under 35 U.S.C. 103(a) as being unpatentable over Chevrolet in view of Lim and Jayachithra, as applied to Claims 11-14, 18-19 and 21-22 above, and in further view of Antunes et al. (Molecules 2020, 25, 2672), hereinafter Antunes.
Chevrolet is silent on the type of the mushroom.
Antunes cures the deficiency by teaching the different applications of mushroom by-products such as in human food to fortify human health, and in animal feed formulation (Abstract; Sections 4.1 and 4.2). Antunes teaches the antioxidant and antitumor properties of P. eryngii (p. 9, Table 1).
Regarding Claims 19-20, Antunes relates the study on P. eryngii by-products diet on pork meat quality characteristics, during refrigerated storage, and the results indicating how the mushroom by-products influenced the quality of the meat, including increased crude protein content, lightness of muscles in fattening pigs etc., which makes it an economically valuable ingredient for animal feed (Section 4.2). Another study showed how fermented P. eryngii by-products in the diet improved carcass grade and decreased the feed cost of fattening pigs (Section 4.2). To sum, the advantages associated with mushroom by-products supplementation for animal feed are related to the animal quality, economic viability and ecological concerns.
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to use P. eryngii in the molded composition made by the method of Chevrolet and package it for food or feed. One would have been motivated to do so because Antunes has taught the many advantages of P. eryngii, inclusive of its antioxidant and antitumor properties and mushroom by-products supplementation of animal feed provides advantages with respect to the animal quality, economic viability and ecological concerns.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Jo et al. (KR 10-2471255 B1, machine translated in IP.com) teaches vacuum filler in the molding vegan meat.
No claims are allowed.
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/JANICE Y SILVERMAN/Examiner, Art Unit 1792
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