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 .
Status of the Claims
The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 1-23
Withdrawn claims: None
Previously canceled claims: None
Newly canceled claims: None
Amended claims: 1-18, 20 and 22
New claims: 23
Claims currently under consideration: 1-23
Currently rejected claims: 1-23
Allowed claims: None
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Claim Objections
Claims 4 and 11 are objected to because of the following informalities:
In claim 4, line 2, “step v) amount of extractable glutamic acid…” should read, “step v), the amount of extractable glutamic acid…”.
In claim 11, line 2, “between 0,20 and 0,40 kg/dm3” should read, “between 0.20 and 0.40 kg/dm3”.
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.
Claims 1-23 are rejected under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor regards as the invention.
A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05€. In the present instance, claim 1 recites the broad recitation, “a salt concentration of less than 3% by weight”, and the claim also recites, “preferably 0.1% to less than 3% by weight” which is the narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims. For purposes of examination, the limitation is construed to be, “iii-a) combining the pre-fermented bed substrate, for adding flavor, with at least one ingredient comprising salt, resulting in a salt concentration of less than 3% by weight”.
Regarding claim 12, the phrase “such as” renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d). For purposes of examination, the claim is construed to be, “The method according to claim 1, wherein the bed substrate comprises at least one component retaining moisture during the fungal growth.”
Regarding claim 13, the phrase “such as” renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d). For purposes of examination, the limitation is construed to be, “vi) heating the formed product to deactivate the filamentous fungal culture.”
Claims 2-23 are rejected due to their dependency from claim 1.
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 1-3, 5-6, 12-18, and 20-23 are rejected under 35 U.S.C. 103 as being unpatentable over Nadal et al. (US 2022/0232854 A1, US PGPub of WO 2020/232347 A1 cited on the IDS filed on 12 March 2025).
Regarding claim 1, Nadal teaches a method of manufacturing a texturized formed plant protein product – Nadal discloses a method of “culturing a filamentous fungus in a solid-state culture using a substrate that contains at least one grain and at least one plant protein, to provide a composition comprising a protein food product having a proximate analysis for protein which is similar to meat…the treatment unexpectedly provides a cooked texture similar to that of cooked texturized plant protein “meat” or actual meat without further additional processing such as mechanical texturization” ([0012]), comprising the steps of:
i) providing a bed substrate comprising plant-based protein-containing particles, said particles forming a mass of material having a packing density comprising internal free spaces – “This invention discloses the use of a mixture of a grain-based substrate and a high protein substrate as the basis for a stationary, solid phase myceliation to allow the filamentous fungus to form hyphae which can form mycelial networks.” ([0020]). Nadal discloses incubating the substrate “until at least some of the spaces between the particles in the mixture are at least partially filled with mycelia of the fungus and the particles are at least partially knitted or bound together by said mycelia” ([0046]), indicating that the substrate particles form a mass of material having a packing density comprising internal free spaces.
ii) introducing at least one filamentous fungal culture into the bed substrate by mixing such that the fungal culture at least partly enters the internal free spaces – “The method also includes inoculating the substrate with a fungal culture.” ([0037]). “Inoculation of the sterilized substrate by the inoculum may be carried out by any methods known in the art, including injection into the substrate, spraying or pipetting inoculum onto the surface of the substrate, without limitation. ([0045]). “[T]he mixture may be gently mixed, tumbled, or manipulated periodically, for example, every few hours to every few days, to facilitate even distribution of mycelia and more homogenous myceliation.” ([0055]).
iii) incubating to convert the bed substrate to a pre-fermented bed substrate in which the fungal culture has at least partly reached mycelial stage – “In one embodiment, inoculated substrate (containing both substrate and inoculum) in bags are treated during culturing o [sic] allow for more homogenous myceliation to take place. For example, the mixture may be gently mixed, tumbled, or manipulated periodically, for example, every few hours to every few days, to facilitate even distribution of mycelia and more homogenous myceliation.” ([0055]). Where the inoculated substrate is mixed periodically every few hours, the fungal culture will have at least partly reached mycelial stage.
iv) shaping the pre-fermented bed substrate to a formed product in a manner conserving the packing density such that the formed product has internal free spaces for filamentous fungal growth – “the inoculated substrate, after inoculation, can be placed into and grown in a cavity of a certain geometry, in some embodiments, the myceliated substrate can retain that geometry and/or take on a net shape in accordance with the shape of the cavity.” ([0054]). It is considered to be within the skill of one of ordinary skill in the art to transfer the periodically mixed pre-fermented inoculated substrate to a mold for subsequent incubation. Alternatively, the bag in which the inoculated substrate was mixed acts as a mold to determine the final shape of the product; Nadal teaches, “The size of the bags to be used can be chosen according to the volume or amount of substrate to treat by the methods of the present invention…the bags can be round in shape…the bags can be rectangular…” ([0052]). The “final shape is influenced by the enclosure, or series of enclosures, that the growth occurs within and/or around.” ([0054]). Nadal discloses incubating the substrate “until at least some of the spaces between the particles in the mixture are at least partially filled with mycelia of the fungus and the particles are at least partially knitted or bound together by said mycelia” ([0046]), indicating that the packing density is conserved such that the formed product has internal free spaces for filamentous fungal growth.
and v) fermenting the formed product to provide a texturized formed plant protein product by a substantially solidifying filamentous fungal growth via the internal free spaces – Nadal teaches “incubating the inoculated mixture at a temperature supporting optimum growth of the filamentous fungus in an atmosphere sufficiently humid to support growth until at least some of the spaces between the particles in the mixture are at least partially filled with mycelia of the fungus and the particles are at least partially knitted or bound together by said mycelia.” ([0046]). Nadal further teaches, “The protein food product is, in an embodiment, a cohesive and/or self-supporting composite material comprised of a substrate of grain and a protein concentrate or isolate, and a network of interconnected mycelia cells extending through and around the grains and bonding the grains together, and providing the protein content of meat.” ([0054]).
Nadal does not specifically discuss iii-a) combining the pre-fermented bed substrate, for adding flavor, with at least one ingredient comprising salt, resulting in a salt concentration of less than 3% by weight.
However, Nadal does teach that “[s]easonings can be added before or after the culturing step. Seasonings include, but are not limited to, minerals such as salt…” ([0090]). Nadal therefore discloses the addition of salt. MPEP § 2144.04(IV)(C) provides, “selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results”. Applicant has not demonstrated any new or unexpected results in any comparative study to show any effects of salt addition at different stages throughout the claimed method. Regarding the amount of salt, salt in regard to seasoning food products is a result effective variable; too much salt results in an overly salty food product, and too little salt results in bland food product. It is considered that the claimed range of less than 3% by weight amounts to standard amounts of “season to taste”.
Therefore, it would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to determine the optimal amount of salt used in the process of Nadal, through routine experimentation, to impart the food product with a desired organoleptic saltiness, including up to 3% by weight as claimed.
Claim 1 is therefore rendered obvious.
Regarding claim 2, Nadal teaches that the bed substrate has a moisture content between 25% to 75% by weight – Nadal teaches, “The wetting should be with sufficient moisture to allow mycelia to grow. In one embodiment, the wetting agent is water, although wetting agents can optionally include excipients such as salts or nutrients. In embodiments, the dry ingredients have wetting agent added in a ratio of about 1 g weight substrate, to between about 1.5 and 2.0 ml wetting agent. In other words, for each g of substrate, optionally, between about 1.5 ml and 2 ml of wetting agent are added. This ratio can be adjusted in order to optimize growth of the fungus and myceliation of the substrate.” ([0023]). Using the density of water = 1 g/ml, the amount of moisture by weight taught by Nadal is 1.5 g water ÷ (1.5 g water + 1 g substrate) = 60% to 2.0 g water ÷ (2.0 g water + 1 g substrate) = 67% by weight. The disclosed range lies inside the claimed range of 25% to 75% by weight.
Claim 2 is therefore rendered obvious.
Regarding claim 3, Nadal teaches the method of claim 1.
Nadal does not specifically discuss that the salt is or comprises at least one of sodium chloride, potassium chloride, magnesium sulphate, or lysine hydrochloride, and wherein step iii-a) is performed after step iii) and before step iv).
However, Nadal does teach that “[s]easonings can be added before or after the culturing step. Seasonings include, but are not limited to, minerals such as salt…” ([0090]). Nadal therefore discloses the addition of salt. Salt used for seasoning food is generally understood to be sodium chloride. As such, Nadal teaches this limitation.
Regarding the sequence of steps, MPEP § 2144.04(IV)(C) provides, “selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results”. Applicant has not demonstrated any new or unexpected results in any comparative study to show any effects of salt addition at different stages throughout the claimed method.
Therefore, it would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to perform step iii-a) after step iii) and before step iv).
Claim 3 is therefore rendered obvious.
Regarding claim 5, Nadal teaches that the bed substrate comprises plant protein suitable for releasing umami ingredients and wherein in step v), umami ingredients are released inside the formed plant protein product through fermentation by the fungal culture – Nadal discloses, “The filamentous fungal culture comprises or is selected from the group consisting of Morchella spp Lentinula spp., or Pleurotus spp.; in one embodiment, the filamentous fungal culture comprises or consists of Morchella esculenta. In one embodiment, the plant protein concentrate or isolate comprises pea protein concentrate and wherein the grain is rice, quinoa, chickpea or combinations thereof and the increased desirable flavor is an umami flavor…” ([0009]). Therefore, Nadal implicitly teaches that the plant proteins are suitable for releasing umami ingredients and that in step v), umami ingredients are released inside the formed plant protein product through fermentation by the fungal culture since the fermentation results in an increased umami flavor.
Claim 5 is therefore rendered obvious.
Regarding claim 6, Nadal teaches the method of claim 1.
The phrase, “wherein the bed substrate comprises plant protein suitable for releasing umami amino acids when the bed substrate comprises at least 1400 mg/100 g glutamic acid” 1) does not introduce a requirement that the plant protein is suitable for releasing umami acids, and 2) is not a process step positively recited in a method claim.
Moreover, glutamic acid is ubiquitous among proteins. Therefore, it is also considered that breakdown of any plant protein can release glutamic acid (i.e., umami amino acids).
Where Nadal discloses, “This invention discloses the use of a mixture of a grain-based substrate and a high protein substrate as the basis for a stationary, solid phase myceliation to allow the filamentous fungus to form hyphae which can form mycelial networks.” ([0020]), regarding the substrate bed of claim 1, and claim 6 introduces no new limitations, claim 6 is rendered obvious.
Regarding claim 12, Nadal teaches that the bed substrate comprises at least one component retaining moisture during the fungal growth – “Edible fiber can be included in the substrate and fiber tends to bind water.” ([0086]). Such water binding is considered to occur throughout the process.
Claim 12 is therefore rendered obvious.
Regarding claim 13, Nadal teaches that the method further comprises the step(s) of:
vi) heating the formed product to deactivate the filamentous fungal culture – “Harvest includes obtaining the myceliated meat analog food product which is the result of the myceliation step. After harvest, substrates can be processed according to a variety of methods. In one embodiment, the myceliated substrate is pasteurized or sterilized.” ([0062]). Pasteurization and sterilization are steps of heating the formed product to deactivate the filamentous fungal culture.
Claim 13 is therefore rendered obvious.
Regarding claim 14, Nadal teaches that the incubation step in iii) is carried out for at least 12 h or less than 24 h – “In one embodiment, inoculated substrate (containing both substrate and inoculum) in bags are treated during culturing o [sic] allow for more homogenous myceliation to take place. For example, the mixture may be gently mixed, tumbled, or manipulated periodically, for example, every few hours to every few days, to facilitate even distribution of mycelia and more homogenous myceliation.” ([0055]). Where the inoculated substrate is mixed periodically every few hours, the fungal culture will have at least partly reached mycelial stage, and incubation is carried out for at least 12 hours or less than 24 hours.
Claim 14 is therefore rendered obvious.
Regarding claim 15, Nadal teaches that the fermentation in step v) is carried out for a period of time ranging from 12 hours to 7 days – Nadal teaches, “Culturing times and/or conditions can be adjusted to achieve the desired aroma, flavor and/or taste outcomes…In one embodiment, the culture may be grown for 2 days, 3 days, 4 days, 5 days, 6 days, 7 days…” ([0072]).
Claim 15 is therefore rendered obvious.
Regarding claim 16, Nadal teaches that the ingredient comprising salt comprises or consists of a plant-based puree or paste – Nadal discloses various flavoring agents, including salt, various plant-based oils, vegetable/fruit materials, and others (see [0090] – [0091]). Nadal further discloses that “The flavoring agents may be applied after spray coating with the oil or adhesive or they may be applied together, for example, as a slurry.” ([0092]). Such a slurry comprising plant-based oils and at least salt is considered to be a plant-based puree or paste.
Claim 16 is therefore rendered obvious.
Regarding claim 17, Nadal teaches that the bed substrate comprises raw natural material selected from cereals, legumes, oil seeds, nuts, pseudocereals, tubers, fruits, vegetables, and any mixtures thereof – Nadal discloses grains suitable for the substrate (see claim 11). These grains comprise cereals (e.g., wheat, rice, oats), legumes (e.g., chickpea), oil seeds (e.g., flaxseed) and pseudocereals (e.g., quinoa, amaranth, buckwheat).
Claim 17 is therefore rendered obvious.
Regarding claim 18, Nadal teaches that the filamentous fungal culture is selected from a culture of Lentinula, or Pleurotus – “fungi effective for use in the present invention include, but are not limited to, Lentinula spp…Pleurotus (oyster) species…and Morchella spp. (morel).” ([0056]).
Claim 18 is therefore rendered obvious.
Regarding claim 20, teaches the method of claim 1, and a texturized formed plant protein product produced by the method according to claim 1 – “The present invention also provides a ‘meat structured protein product’ in the absence of texturizing… In the present invention, fiber networks and fiber alignments are created by mycelial action and/or mycelia itself.” ([0077]). Nadal states that the product is texturized by mycelial action and/or mycelia itself rather than by conventional, mechanical means (Id.).
Claim 20 is therefore rendered obvious.
Regarding claim 21, Nadal teaches that the texturized formed plant protein product is a vegetable meat-imitation patty or a vegetable meat-imitation ball – Nadal teaches, “Such prepared myceliated substrates or protein food products can be used to as a substitute or extender for ground meats or chopped/diced meats…formed meat patties…” ([0084]).
Claim 21 is therefore rendered obvious.
Regarding claim 22, Nadal teaches a food product comprising the texturized formed plant protein product according to claim 20 – “The present invention also provides a ‘meat-like food product’ which, as used herein refers to a food product that is not derived from an animal but has structure, texture, and/or other properties, when cooked, comparable to those of cooked animal meat.” ([0075]). See also claim 23 of Nadal.
Claim 22 is therefore rendered obvious.
Regarding claim 23, Nadal teaches that the method further comprises the step of:
vii) adding spices, herbs or marinade – Nadal discloses various flavoring agents, including salt, plant-derived seasonings, such as herbs and spices, and various plant-based oils, ([0090]). Nadal further discloses that “The flavoring agents may be applied after spray coating with the oil or adhesive or they may be applied together, for example, as a slurry.” ([0092]). Such a slurry comprising plant-based oils salt, herbs, and spices is considered to be a marinade.
Claim 23 is therefore rendered obvious.
Claims 4 is rejected under 35 U.S.C. 103 as being unpatentable over Nadal et al., as applied to claim 1 above, as evidenced by Bao et al. (Bao, L., Li, Y., Wang, Q., et al. (2013). Nutritive and bioactive components in rice fermented with the edible mushroom Pleurotus eryngii. Mycology, 4(2), 96–102. https://doi.org/10.1080/21501203.2013.816386).
Regarding claim 4, Nadal teaches the method of claim 1.
Nadal does not specifically discuss that in fermentation step v) amount of extractable glutamic acid increases, wherein the amount of extractable glutamic acid in the texturized formed plant product is at least 4 g/kg dry matter, or the amount of extractable glutamic acid in the texturized formed plant protein product is at least quadrupled compared to the amount of extractable glutamic acid in the bed substrate.
However, Nadal teaches that the substrate comprises a grain material that may be rice ([0021]) in amounts including at least 5% by dry weight and at least 70% by dry weight ([0022]). Nadal further teaches that the substrate may be fermented by Pleurotus eryngii ([0056]). As evidenced by Bao, fermentation of rice with Pleurotus eryngii increases the amount of extractable glutamic acid, and the total amount of glutamic acid after fermentation is over 50 mg/g (p. 100, Figure 2B). PER is Pleurotus eryngii-fermented rice, and R is non-fermented rice.
Therefore, where Nadal teaches fermenting rice with Pleurotus eryngii, Nadal implicitly teaches that in the fermentation step v), the amount of extractable glutamic acid increases, wherein the amount of extractable glutamic acid in the texturized formed plant product is at least 4 g/kg (i.e., 4 mg/g) dry matter.
Claim 4 is therefore rendered obvious.
Claims 7 is rejected under 35 U.S.C. 103 as being unpatentable over Nadal et al., as applied to claim 1 above, as evidenced by Khan et al. (Khan, J., Gul, P., & Liu, K. (2024). Grains in a Modern Time: A Comprehensive Review of Compositions and Understanding Their Role in Type 2 Diabetes and Cancer. Foods, 13(13), 2112. https://doi.org/10.3390 /foods13132112).
Regarding claim 7, Nadal teaches the method of claim 1.
Nadal does not specifically discuss that the bed substrate comprises at least 5% by weight carbohydrates.
However, Nadal teaches that the substrate comprises a grain material that may be rice, including brown rice ([0021]) in amounts including at least 5% by dry weight and at least 70% by dry weight ([0022]). As evidenced by Khan, 100g of brown rice contains 71.1 g (i.e., 71.1 % by weight) of carbohydrates. Therefore, where Nadal teaches that the substrate may include brown rice in an amount of at least 70%, Nadal implicitly teaches that the bed substrate comprises at least 71.1% x 0.7 = 49.8% carbohydrates.
Claim 7 is therefore rendered obvious.
Claims 8 is rejected under 35 U.S.C. 103 as being unpatentable over Nadal et al., as applied to claim 1 above, in view of Bao et al. (Bao, L., Li, Y., Wang, Q., et al. (2013). Nutritive and bioactive components in rice fermented with the edible mushroom Pleurotus eryngii. Mycology, 4(2), 96–102. https://doi.org/10.1080/21501203.2013.816386).
Regarding claim 8, Nadal teaches the method of claim 1.
Nadal does not discuss that the pH of the bed substrate is in the range of 4.8 to 6.8.
However, Nadal teaches that the substrate comprises a grain material that may be rice ([0021]) in amounts including at least 5% by dry weight and at least 70% by dry weight ([0022]). Nadal further teaches that the substrate may be fermented by Pleurotus eryngii ([0056]).
Bao teaches fermenting rice with Pleurotus eryngii, and that the pH of the culture medium to prepare the Pleurotus eryngii inoculum was adjusted to 6.5 (pp. 96-97, bridging ¶). This indicates that a suitable pH for Pleurotus eryngii growth is 6.5.
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to adjust the pH of the bed substrate used in Nadal to pH 6.5 as taught by Bao. One of ordinary skill in the art would have been motivated to do so to provide the Pleurotus eryngii with suitable growth conditions. One of ordinary skill in the art would have had a reasonable expectation of success in doing so because Bao teaches that Pleurotus eryngii grows at pH 6.5.
Claim 8 is therefore rendered obvious.
Claims 9-10 are rejected under 35 U.S.C. 103 as being unpatentable over Nadal et al., as applied to claim 1 above, in view of Manan et al. (Manan, M. A., & Webb, C. (2017). Design aspects of solid state fermentation as applied to microbial bioprocessing. J Appl Biotechnol Bioeng, 4(1), 511-532. https://doi.org/10.15406/jabb.2017.04.00094).
Regarding claim 9, Nadal teaches the method of claim 1.
Nadal discloses incubating the substrate “until at least some of the spaces between the particles in the mixture are at least partially filled with mycelia of the fungus and the particles are at least partially knitted or bound together by said mycelia” ([0046]), indicating that the substrate particles form a mass of material having a packing density comprising internal free spaces.
Nadal does not discuss that the plant-based protein-containing particles have a size distribution selected so that the internal free spaces allow mass transfer and substrate availability for the fungal culture, wherein the internal free spaces have a diameter of 0.2 to 5 mm.
However, Manan teaches the following regarding particle size on page 517, col. 2, ¶ 3:
The particle size properties of solid substrates will lead to the shape, accessible area, surface area and porosity of the solid substrates. Processes like chopping, grinding and cutting create a condition for microorganisms to be active at the initial stages of growth and increase the degradation and hydrolysis rate since the solid substrate is insoluble. The most important physical factor is the particle size that affects the surface area to volume ratio of the solid substrate. Smaller particle size would provide a larger surface area per volume and allow full contact of microorganisms with the nutrients but the diffusion of oxygen would be affected. Larger particle size provides small area per volume ratio and gives excellent diffusion of oxygen but contact with nutrients is affected. A suitable particle size should satisfy both mycelial growth and the demand for oxygen and nutrients. Particle size also affects the size of inter-particle voids and porosity. Any change in porosity of the solid substrate bed changes the apparent density of solid substrate and diffusion of gases into the bed. A large pore size is suitable for an adequate oxygen supply. If porosity is limited, the effective diffusivity of gases is less. Particle size and properties may change during fermentation. These do not only affect the growth of microorganisms, but also affect the monitoring of heat conductivity, substrate consumption, products concentration and water content.
As such, Manan teaches that the particle size is a result effective variable affecting the nutrient contact with microorganisms and oxygen diffusion (i.e., mass transfer and substrate availability) as highlighted above.
Therefore, it would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to determine the optimal value for the size of the particles used in the process of Nadal in view of Manan, through routine experimentation, to impart the substrate bed with a particle size that balances nutrient contact and oxygen diffusion throughout the substrate, including particle sizes such that the internal free spaces have a diameter of 0.2 to 5 mm as claimed.
Claim 9 is therefore rendered obvious.
Regarding claim 10, Nadal teaches the method of claim 1.
Nadal discloses incubating the substrate “until at least some of the spaces between the particles in the mixture are at least partially filled with mycelia of the fungus and the particles are at least partially knitted or bound together by said mycelia” ([0046]), indicating that the substrate particles form a mass of material having a packing density comprising internal free spaces.
Nadal does not discuss that the packing density is sufficiently low to enable air circulation through the mass of material, in other words the mass of material being aerated.
However, Manan teaches the following regarding particle size and inter-particle voids and porosity on page 517, col. 2, ¶ 3:
The particle size properties of solid substrates will lead to the shape, accessible area, surface area and porosity of the solid substrates. Processes like chopping, grinding and cutting create a condition for microorganisms to be active at the initial stages of growth and increase the degradation and hydrolysis rate since the solid substrate is insoluble. The most important physical factor is the particle size that affects the surface area to volume ratio of the solid substrate. Smaller particle size would provide a larger surface area per volume and allow full contact of microorganisms with the nutrients but the diffusion of oxygen would be affected. Larger particle size provides small area per volume ratio and gives excellent diffusion of oxygen but contact with nutrients is affected. A suitable particle size should satisfy both mycelial growth and the demand for oxygen and nutrients. Particle size also affects the size of inter-particle voids and porosity. Any change in porosity of the solid substrate bed changes the apparent density of solid substrate and diffusion of gases into the bed. A large pore size is suitable for an adequate oxygen supply. If porosity is limited, the effective diffusivity of gases is less. Particle size and properties may change during fermentation. These do not only affect the growth of microorganisms, but also affect the monitoring of heat conductivity, substrate consumption, products concentration and water content.
As such, Manan teaches that the particle size is a result effective variable affecting the porosity and density of the solid substrate and diffusion of gases into the bed as highlighted above. A larger pore size is favored for effective gas diffusivity, and results from larger particle sizes. A larger pore size is associated with a reduced density.
Therefore, it would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to determine the optimal value for the size of the particles used in the process of Nadal in view of Manan, through routine experimentation, to impart the substrate bed with an inter-particle void size and porosity that facilitates effective gas diffusivity (i.e., aeration) through the substrate bed as claimed.
Claim 10 is therefore rendered obvious.
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Nadal et al., as applied to claim 1 above, in view of Dorta et al. (Dorta, B., & Arcas, J. (1998). Sporulation of Metarhizium anisopliae in solid-state fermentation with forced aeration. Enzyme and Microbial Technology, 23(7-8), 501-505. https://doi.org/10.1016/S0141-0229(98)00079-9).
Regarding claim 11, Nadal teaches the method of claim 1.
Nadal discloses incubating the substrate “until at least some of the spaces between the particles in the mixture are at least partially filled with mycelia of the fungus and the particles are at least partially knitted or bound together by said mycelia” ([0046]), indicating that the substrate particles form a mass of material having a packing density comprising internal free spaces.
Nadal does not discuss that the packing density is between 0.20 and 0.40 kg/dm³.
However, Dorta teaches that solid state fermentation of rice bran and rice husk with the fungus M. anisopilea (p. 502, col. 1, ¶¶ 3-4) at packing densities of 0.270 g/ml and 0.357 g/ml results in greater biomass production over time than a packing density of 0.496 g/ml (p. 502, col. 2, Figure 1A). It is noted that g/ml is equivalent to kg/dm³. The disclosed densities of 0.270 g/ml and 0.357 kg/dm³ lie inside the claimed range.
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to modify the method of Nadal with the teachings of Dorta to provide the substrate bed with a packing density of 0.27 to 0.357 kg/dm³ to favor increased biomass production. One of ordinary skill in the art would have been motivated to consult Dorta to identify a suitable packing density for the substrate bed of Nadal as Nadal does not disclose the size of the spaces between particles or the packing density for optimal growth of the mycelia. One of ordinary skill in the art would have had a reasonable expectation of success because Dorta teaches that a packing density of 0.27 to 0.357 kg/dm³ provides greater biomass production over time than a packing density of 0.496 kg/dm³.
Claim 11 is therefore rendered obvious.
Claim 19 is rejected under 35 U.S.C. 103 as being unpatentable over Nadal et al., as applied to claim 1 above, in view of Prakesh (Prakesh, S. (2020, January 14). What Exactly Is Koji Rice?. The Kitchn. https://www.thekitchn.com/what-exactly-is-koji-rice-228336).
Regarding claim 19, Nadal teaches the method of claim 18.
Nadal does not discuss that the filamentous fungal culture is or comprises Aspergillus oryzae.
However, Nadal teaches that the substrate comprises a grain material that may be rice ([0021]) in amounts including at least 5% by dry weight and at least 70% by dry weight ([0022]), and “fungi effective for use in the present invention include, but are not limited to, Lentinula spp…Pleurotus (oyster) species…and Morchella spp. (morel).” ([0056]).
Prakesh teaches the fermentation of rice with Aspergillus oryzae to make koji rice, wherein the culture is added to cooked grains, and the grains are then placed in wooden trays and left to ferment in a warm, humid environment for up to 50 hours, resulting in essentially moldy rice (p. 3, ¶¶ 2-3). Prakesh teaches that this process can also be applied to other grains, as well as legumes (p. 3, ¶ 2). The fermented rice is held together by the koji mycelium (see p. 1, image).
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to modify the method of Nadal with the teachings of Prakesh to use Aspergillus oryzae to ferment the substrate by simple substitution of one known element for another to obtain predictable results See MPEP § 2143(I)(B). First, Nadal teaches that the “invention discloses the use of a mixture of a grain-based substrate and a high protein substrate as the basis for a stationary, solid phase myceliation to allow the filamentous fungus to form hyphae which can form mycelial networks.” ([0020]). Nadal discloses incubating the substrate “until at least some of the spaces between the particles in the mixture are at least partially filled with mycelia of the fungus and the particles are at least partially knitted or bound together by said mycelia” ([0046]). Nadal teaches that the substrate bay be rice in an amount of at least 5% by weight, and that the fungi effective for use in the present invention are not limited to Lentinula spp., Pleurotus (oyster) species, and Morchella spp. (morel). Next, Prakesh teaches that rice and legume substrates are fermented with Aspergillus oryzae, resulting in a substrate cake held together by the mycelium (p. 3, ¶¶ 2-3, p. 1, image). Therefore, fermenting the substrate of Nadal with the Aspergillus oryzae of Prakesh would predictably result in the fermented substrate being held together by a network of mycelium.
Claim 19 is therefore rendered obvious.
Conclusion
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/JAMES P. SHELLHAMMER/Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793