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 1-20 filed 10/10/2024 are pending in the application and are hereby examined on the merits.
Claim Objections
Claim 18 is objected to because of the following informalities: “the emulsified gel is added and mixed as a frozen product” should read “the emulsified gel is mixed with the textured vegetable protein as a frozen product”. Appropriate correction is required.
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 10 and 12 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable claim 12 of copending Application No. 18/913065 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because claim 12 of ‘065 recites the process of instant claims 10 and 12, in which the heating treatment necessarily denatures the vegetable protein.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
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 1-12 are rejected under 35 U.S.C. 103 as being unpatentable over Sato JP2018029565A (cited in the IDS submitted 11/14/2024, English translation of the specification relied upon for reference, hereinafter referred to as Sato).
Regarding claims 1-12, Sato teaches a method of making an emulsion curd which is used to impart juiciness to a frozen meat-like processed food, the method comprising homogenizing a mixture of a vegetable protein (e.g., soy protein isolate, 0007 and 0033), water, oil (e.g., rapeseed oil which is canola oil, rice oil, corn oil, palm oil, etc., 0012) and a polysaccharide (e.g., methylcellulose) to form an emulsion, and heating the emulsion at a temperature of 70-95 °C for 40-70 min to form the emulsion curd (0007; 0033). Further, Sato teaches freezing the emulsion curd (0033).
The emulsion curd as disclosed by Sato is interpreted to read on the limitation about the “emulsion gel” as recited in claim 1, given that Sato teaches that the process of making the emulsion curd includes forming an emulsion of vegetable protein, water and oil, followed by heat setting the emulsion at a temperature of 70 to 95°C for 40 to 70 minutes (0021), which is consistent with the process of making an emulsified gel as recited in the instant specification (see para. 0046). Further, para. 0004 of the instant specification appears to admit that the emulsion curd as disclosed by Sato is an emulsified gel.
Further, heating the emulsion at a temperature of 70 to 95°C for 40 to 70 minutes necessarily denatures the vegetable protein (see para. 0046-0048 of the instant specification as an evidence).
Further, Sato teaches that the amount of vegetable protein in the emulsified gel is 1-10%, the amount of water in the emulsified gel is 10-50%, the amount of oil in the emulsified gel is 45-85%, and the amount of polysaccharide in the emulsified gel is 0.1-5% (0007; 0014). As such, the amounts of water and oil as disclosed by Sato fall within the ranges as recited in claims 3-4, the amount of polysaccharide as disclosed by Sato overlaps with the range as recited in claim 8, and the amount of vegetable protein relative to the amount of oil as disclosed by Sato overlaps with the range as recited in claims 1-2 (calculation, Sato teaches 1-10% soy protein and 45-85% oil, thus the ratio of protein/oil is 1%/85%- 10%/45% which is 1.2-22%). 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, Sato teaches that the soy protein isolate used is New Fuji Pro SEH (0032), which according to para. 0083 of the instant specification is a low-denatured vegetable protein.
Claims 13-17 and 19-20 are rejected under 35 U.S.C. 103 as being unpatentable over Sato JP2018029565A (cited in the IDS submitted 11/14/2024, English translation of the specification relied upon for reference, hereinafter referred to as Sato) in view of Dreher WO 2021/009043 A1 (cited in the IDS submitted 11/14/2024, hereinafter referred to as Dreher).
Regarding claims 13-17 and 19-20, Sato as recited above teaches an emulsified gel in connection with claim 1. Further, Sato teaches a method of making a frozen meat-like processed food such as burgers, patties, ham, frankfurters, etc.(0010), the method comprising adding the emulsified gel (e.g., the emulsion curd) to a meat-like food dough to form a mixture, followed by heating and freezing (0006-0007) the mixture to form the frozen meat-like processed food, wherein the emulsion curd imparts juiciness to the frozen meat-like processed food (0007).
Further, Sato teaches adding 1-50% the emulsion curd to the meat-like food dough (0007), thus the amount of emulsion gel in the frozen meat-like processed food overlaps the range as recited in claims 15 and 19. 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).
Sato teaches mixing the emulsion curd (e.g., emulsified gel) with a meat-like food dough that includes protein (e.g., granola soy protein) followed by heating and freezing to form a frozen meat-like processed food such as hamburgers, patties, ham, frankfurters, etc.(0010; 0040), thus being silent regarding a textured vegetable protein (TVP).
Dreher in the same field of endeavor teaches that hydrated TVP of pea can be combined with oil and a binder to make a plant-based meat analogue (e.g., burgers) (page 1,” Background of the invention”; example 1).
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 Sato by including TVP of pea in the meat-like food dough with reasonable expectation of success, for the reason that prior art has established that TVP can be used to make a plant-based meat analogue such as a burger.
Given that Sato in view of Dreher arrives at the processed meat-like food product of claim 13, it logically follows that prior art product has the deliquoring rate at break of claim 16, which measures the juiciness of the processed meat-like food product. See In re Best. Note that Sato teaches that including the emulsified gel in the frozen meat-like processed food will increase the juiciness.
Claim 18 is rejected under 35 U.S.C. 103 as being unpatentable Sato in view of Dreher as applied to claims 13 above, and further in view of Sun US Patent Application Publication No. 2020/0197904 A1 (hereinafter referred to as Sun).
Regarding claim 18, Sato teaches mixing the emulsion curd (e.g., emulsified gel) with a meat-like food dough followed by heating and freezing to form a frozen meat-like processed food, but is silent regarding that the emulsified gel is frozen in the step of mixing. What Sato teaches is that the emulsified gel is gently mixed with the dough so as not to break down the emulsified gel (0039).
Sun teaches that freezing a gel could enhance the gel strength the gel (0025).
Both Sato and Sun are directed to a gel, and where Sato teaches mixing the emulsified gel with the dough gently to avoid breakage, Sun teaches that freezing a gel could improve the gel strength. 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 Sato by freezing the emulsified gel before mixing it with the dough. Doing so would have improved the gel strength of the emulsified gel and prevented breakage or rupture of the emulsified gel during mixing.
Conclusion
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/CHANGQING LI/Primary Examiner, Art Unit 1791
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