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
Note: The amendment of May 27th 2026 has been considered.
Claims 1, 6, 13, 21 and 29 have been amended.
Claim 5 was cancelled.
Claims 1-4 and 6-30 are pending in the current application.
Claims 13-30 are withdrawn from consideration.
Claims 1-4 and 6-12 are examined in the current application.
Any rejections not recited below have been withdrawn.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35 of the U.S. Code not included in this action can be found in a prior Office action.
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 1-4 and 6-12 are rejected under 35 U.S.C. 103 as being unpatentable over NPL Zhmurina et al., “Developing an emulsion product with a functional purpose using an emulsifier of plant origin” (from IOP Conf. Series: Earth and Environmental Science 274 (2019)) in view of NPL Berger et al., “Mycelium vs. Fruiting Bodies of Edible Fungi – A Comparison of Metabolites” (from Microorganisms 2022, 10, 1379) and NPL Souza Filho et al., “Vegan-mycoprotein concentrate from pea-processing industry byproduct using edible filamentous fungi” from Fungal biology and biotechnology (2018) 5:5) and Evidenced by NPL “3.5: Density” (‘LibreTexts’) (from https://chem.libretexts.org/Courses/Portland_Community_College/CH151%3A_Preparatory_Chemistry/03%3A_Dimensional_Anlaysis_and_Density/3.05%3A_Density).
Regarding claims 1 and 7: Zhmurina discloses developing emulsion products with functional purposes using plant-based emulsifiers, specifically champignon powder (i.e., agaricus bisporus) (see Zhmurina abstract). Zhmurina further discloses that champignon powder could effectively serve as an emulsifier due to its high protein content (i.e., 21-40.0 g/100g and 49.1g/100g) (see Zhmurina page 4), but fails to disclose filamentous fungal mycelium; However, Berger and Souza-Filho discloses the fact that filamentous fungal mycelium is affordable and is known to have high protein content, in some cases higher than mushroom powder (i.e., fruiting bodies) (see Berger abstract and section 3 on page 4; see Souza Filho abstract and conclusion). Therefore, it would have been obvious to a skilled artisan at the time the application was filed to have substitute the mushroom powder in Zhmurina and to have used a filamentous fungal mycelium instead, as it is cheaper and has higher protein content than mushroom powder, and thus arrive at the claimed limitations.
Moreover, Zhmurina discloses forming an emulsion using champignon powder swollen with water at the weight ratio of champignon powder to water of 1:6, and mixing the swollen champignon powder with vegetable oil at weight ratio of swollen champignon powder to vegetable oil of 1:1 (see Zhmurina page 5, bottom half; Table 4), providing an emulsion composition comprising about 7% champignon powder, 50% vegetable oil and 43% water. Accordingly, Zhmurina reads on claim 1: “[a] food base composition, comprising: fungal mycelial biomass, wherein a dry weight of the fungal mycelial biomass is about 2 wt% to about 15 wt% of the food base composition; an aqueous liquid, in an amount of about 20 wt% to about 80 wt%; and one or more edible fats or oils, in an amount of about 10 wt% to about 80 wt%”.
Regarding claim 2: Zhmurina discloses forming an emulsion similar to mayonnaise, using champignon powder swollen with water at the weight ratio of champignon powder to water of 1:6, and mixing the swollen champignon powder with vegetable oil at weight ratio of swollen champignon powder to vegetable oil of 1:1 (see Zhmurina page 5, bottom half; Table 4), providing an emulsion composition comprising about 7% champignon powder, 50% vegetable oil and 43% water. Given the fact the density of mayonnaise is known to be 0.910 g/ml (see LibreTexts Table 3.5.1). Zhmurina reads on claim 2: “[2.ii.] the food base composition comprise at least about 15 mg of protein per 15 ml (1 tablespoon) of the food base composition”.
Regarding claim 3: Zhmurina discloses developing emulsion products with functional purposes using plant-based emulsifiers, specifically champignon powder (i.e., agaricus bisporus) (see Zhmurina abstract). Zhmurina further discloses that champignon powder could effectively serve as an emulsifier due to its high protein content (i.e., 49.1g/100g) (see Zhmurina page 4). Moreover, Zhmurina discloses forming an emulsion similar to mayonnaise, using champignon powder swollen with water at the weight ratio of champignon powder to water of 1:6, and mixing the swollen champignon powder with vegetable oil at weight ratio of swollen champignon powder to vegetable oil of 1:1 (see Zhmurina page 5, bottom half; Table 4), providing an emulsion composition comprising about 7% champignon powder, 50% vegetable oil and 43% water. While Zhmurina fails to disclose the CIELAB L* value of the mayonnaise-like emulsion product, given the fact the CIELAB L* value of mayonnaise is higher than 70, Zhmurina meets the claimed limitations.
Regarding claim 4: Zhmurina discloses developing emulsion products with functional purposes using plant-based emulsifiers, specifically champignon powder (i.e., agaricus bisporus) (see Zhmurina abstract). Zhmurina further discloses that champignon powder could effectively serve as an emulsifier due to its high protein content (i.e., 49.1g/100g) (see Zhmurina page 4). Moreover, Zhmurina discloses forming an emulsion similar to mayonnaise, using champignon powder swollen with water at the weight ratio of champignon powder to water of 1:6, and mixing the swollen champignon powder with vegetable oil at weight ratio of swollen champignon powder to vegetable oil of 1:1 (see Zhmurina page 5, bottom half; Table 4). While Zhmurina fails to disclose the pH of the mayonnaise-like emulsion product, given the fact the pH of mayonnaise is between 5.5 and 6.5, Zhmurina meets the claimed limitations.
Regarding claims 6 and 8: Zhmurina discloses forming an emulsion using champignon powder (comprising 49.1% protein) swollen with water at the weight ratio of champignon powder to water of 1:6 and 1:2, and mixing the swollen champignon powder with vegetable oil at weight ratio of swollen champignon powder to vegetable oil of 1:1 (see Zhmurina page 5, bottom half; Table 4), providing an emulsion compositions with protein contents that read on the protein contents in claims 6 and 8.
Regarding claims 9 and 10: Zhmurina discloses emulsion products with functional purposes using champignon powder as an emulsifier (i.e., plant-based emulsifier) that does not appear to comprise dairy products or any other animal products (see Zhmurina abstract; page 4).
Regarding claims 11 and 12: Zhmurina discloses developing emulsion products with functional purposes using plant-based emulsifiers, specifically champignon powder (i.e., agaricus bisporus) (see Zhmurina abstract). Zhmurina further discloses that champignon powder could effectively serve as an emulsifier due to its high protein content (i.e., 49.1g/100g) (see Zhmurina page 4). Moreover, Zhmurina discloses forming an emulsion similar to mayonnaise, using champignon powder swollen with water at the weight ratio of champignon powder to water of 1:6, and mixing the swollen champignon powder with vegetable oil at weight ratio of swollen champignon powder to vegetable oil of 1:1 (see Zhmurina page 5, bottom half; Table 4), providing an emulsion composition comprising about 7% champignon powder, 50% vegetable oil and 43% water. While Zhmurina fails to disclose the stability attributes of the emulsion products as recited in claims 11 and 12, Zhmurina comprise the same constituents at similar contents that are emulsified through the same emulsification process in the current application (see Zhmurina pages 4-6), it is examiner’s position the stability attributes recited in claims 11 and 12 are inherently present in the emulsion product in Zhmurina. As set forth in MPEP §2112.01, "where...the claimed and prior art products are identical or substantially identical, or are produced by identical or substantially identical processes, the PTO can require an applicant to prove that the prior art products do not necessarily or inherently possess the characteristics of his claimed product. Whether the rejection is based on "inherency" under 35 USC 102, on "prima facie obviousness" under 35 USC 103, jointly or alternatively, the burden of proof is the same, and its fairness is evidenced by the PTO's inability to manufacture products or to obtain and compare prior art products. See In re Brown, 59 CCPA 1036, 459 F.2d 531,173 USPQ 685 (1972)." In re Best, Bolton and Shaw 195 USPQ 430 (CCPA 1977).
Response to Arguments
Applicant's arguments filed on May 27th 2026 have been fully considered but they are not persuasive.
Applicant argues on pages 8-10 of the “Remarks” that the prior art references fail to render the claimed invention obvious, because Zhmurina chooses the champignon powder over powdered mushrooms of other mushroom species, due to the superior product (i.e., mayonnaise) it provided and not over it’s protein content. Therefore, a skilled artisan would not be motivated to substitute the mushroom powder, attained from the fruiting bodies of champignon mushrooms, from Zhmurina with the claimed mushroom powder, attained from the mycelium of filamentous mushrooms, such as champignon. The examiner respectfully disagrees.
Zhmurina discloses that powdered champignon, which is attained from champignon fruiting bodies, provided better mayonnaise than other powdered mushrooms, because it was a better emulsifier due to its higher protein content (see Zhmurina top paragraph on page 4). Given the fact filamentous fungal mycelium is known to have high protein content, in some cases higher than mushroom powder (i.e., fruiting bodies) (see Berger abstract and section 3 on page 4; see Souza Filho abstract and conclusion), it would have been obvious to a skilled artisan at the time the application was filed to have substitute the mushroom powder in Zhmurina and to have used a filamentous fungal mycelium instead, as it has higher protein content than mushroom powder, and therefore higher emulsifying properties than mushroom powder, and thus arrive at the claimed limitations.
Applicant argues on pages 8-10 of the “Remarks” that the prior art references fail to render the claimed invention obvious, because while Zhmurina discloses in page 4 that “…mushroom powder from champignons is in the first place in terms of protein content. Therefore, this powder will have the maximum emulsifying properties”, does not mean the higher protein mushroom powder will be the best emulsifier, as Zhmurina also compared the amino acid profile of champignon powder to egg yolk (a known emulsifier) and attributed the superior emulsifying properties to the similarities between the amino acid profiles, which will further deter a skilled artisan to substitute the mushroom powder from champignons with any other mushroom-based powder. The examiner respectfully disagrees.
On page 4, Zhmurina compares the amino acid profile of a hypothetical protein to the amino acid profile of egg yolk and the amino acid profile of powdered champignons, but not with the amino acid profile of any other powdered mushroom, i.e., Zhmurina does not teach away from using any other mushroom-based powder. Instead, the teaching provides another explanation why powdered champignon was an excellent emulsifier. The fact that Zhmurina discloses that compared to the mushroom powders from the three other tested powdered mushrooms “…mushroom powder from champignons is in the first place in terms of protein content. Therefore, this powder will have the maximum emulsifying properties”, teaches that a mushroom-based powder that comprises higher protein content, will probably be a better emulsifier than mushroom-based powder with lower protein content. The fact that Applicants affirmed that assertion, does not render the claimed invention patentable over the prior art.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ASSAF ZILBERING whose telephone number is (571)270-3029. The examiner can normally be reached M-F 8:30-5:00.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Erik Kashnikow can be reached at (571) 270-3475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/ASSAF ZILBERING/Examiner, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792
