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
The examiner acknowledged the amendment made to claims on 08/26/2025
Claims 1-11 are pending in the application. Claim 1 is currently amended. Claims 2-10 are previously presented. Claim 11 is withdrawn with traverse in response to the restriction requirement. Claims 1-10 are hereby examined on the merits.
Examiner Note
Any objections and/or rejections that are made in the previous actions and are not repeated below, are hereby withdrawn.
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 4-10 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 4-10 recite that the method contain extra steps besides the steps of claim 1. However, claim 1 recites “consisting of” the stages of claim 1 which excludes extra steps. It is not clear what steps the method is limited to. Appropriate correction is required.
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 1-2, 4-5 and 7 are rejected under 35 U.S.C. 103 as being unpatentable over Caroline, "Greek Yogurt Cheese - Taste Love and Nourish", published on 31 July 2013, retrieved from the Internet: http://www.tasteloveandnourish.com/2013/07 /31/greek-yogurt-cheese/ (cited in IDS, hereinafter referred to as Caroline) in view of Ray, "Is it safe to microwave yogurt? - Quora" , published on 22 July 2016, retrieved from the Internet: https://www.quora.com/Is-it-safe-to-microwave-yogurt (cited in IDS, hereinafter referred to as Ray), Scott, “Cheesemaking Operations” in “Cheesemaking Practice”, Third edition, Springer Science, 1998, pages 165-192 (hereinafter referred to as Scott), Uusi-Rauva US Patent Application Publication No. 2015/0181903 (hereinafter referred to as Uusi-Rauva), and Wiessel US Patent Application Publication No. 2016/0073650 (hereinafter referred to as Wiessel).
Regarding claims 1-2, Caroline teaches a method of making a food product (e.g., yogurt cheese) from Greek yogurt comprising the steps of straining and pressing the Greek yogurt to expel as much as whey and water out of the yogurt to achieve a thick yogurt cheese; Caroline further teaches adding a stabilizing ingredient (e.g., salt and olive oil) to the yogurt cheese before packing and refrigerating the yogurt cheese (para. “Instructions” and para. 2).
Caroline is silent regarding microwave heating the yogurt.
Ray teaches that microwave treatment of a yogurt will curdle the content with whey separating out (para. 1-2).
Both Caroline and Ray are directed to yogurts, and where Caroline discloses that it is desirable to separate whey from the rest of the yogurt product, Ray teaches that microwaving a yogurt could help to separate the whey out of yogurt and form a curdle.
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 Caroline by including the step of treating the yogurt with microwave before straining so as to help to separate whey from the yogurt product to form a curdle.
Caroline as modified by Ray teaches microwave treatment but is silent regarding the frequency and treatment time. However, it is known that microwave is electromagnetic wave with frequencies between 300 megahertz and 300 gigahertz. Further, one of ordinary skill in the art would have understood that the frequency of an electromagnetic wave such as microwave is related to the energy level (watts). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have varied the frequency of the microwave to ensure that the energy delivered by the microwave is sufficient in curdling the yogurt and separating whey from yogurt. As such, the frequency as recited in the claim is merely an obvious variant of the prior art.
Similarly, the one of ordinary skill in the art would also have understood that the duration of microwave treatment is a result effective variable because it affects the amount of energy delivered to the substrate that is being microwaved. One of ordinary skill in the art would have been motivated to vary the microwaving time (e.g., varying the energy delivered to the yogurt) so as to ensure more whey could be separated from the yogurt. As such, the duration as recited in claim 1 is merely an obvious variant of the prior art.
Caroline as modified Ray teaches microwave heating which helps to separate out whey and form a curdle, but is silent regarding heating the yogurt to a temperature of 60-65 degree Celsius.
Scott teaches heating (e.g., scalding) the cheese curd to cause it to shrink, to expel more whey and water from the curd, and to firm up the curd (page 174, 2nd para. and bottom para.). Uusi-Rauva teaches a method of making cheese comprising heating cheese curd at a temperature of 60-95 degree Celsius ([0008-0012]).
Caroline, Ray, Scott and Uusi-Rauva are all directed to fermented dairy products in which whey is separated from the curd. 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 Caroline by microwave heating the yogurt to a temperature of 60-95 degree Celsius with reasonable expectation of success, for the reason that prior art has established that heating a fermented dairy curdle to 60-95 degree Celsius would help to expel more water and whey from casein protein.
The temperature as disclosed by Uusi-Rauva encompasses the temperature range as recited in the claim. 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).
Caroline as modified by Ray, Scott, and Uusi-Rauva is silent regarding adding a gelling agent such as pectin to the yogurt.
In the same field of endeavor, Wiessel teaches adding a stabilizer such as pectin and fruit puree to yogurt, wherein pectin functions to stabilize the protein in the yogurt, and that the yogurt composition that has a stabilizer and puree has extended the shell life of the yogurt ([0083; 0081; 0059; 0008; 0073].
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 Caroline by adding pectin and puree to the yogurt so as to stabilize the protein and to extend the shell life of the yogurt. One of ordinary skill in the art, before the effective filing date of the claimed invention, would have had a reasonable expectation of success for doing so because the prior art has established that adding pectin and puree to yogurt could help to stabilize the protein in the yogurt and to extend the shell life of the yogurt.
It is noted that the instant claim 1 now recites that the method consists of the step of heating, straining, pressing and adding steps which excludes extra steps. In the instant case, Caroline as modified teaches the step of heating, straining, pressing and adding which encompasses all the steps of claim 1. Further, although Caroline teaches the extra steps of packing and storing the product under refrigeration condition, Caroline’s steps of prior to packing as modified by Ray, Scott, and Uusi-Rauva and Wiessel reads on a method consisting of the steps of claim 1. Note that the instant specification does not recite that the product upon production is stored as is, rather the instant specification recites the steps of storing the product under refrigeration condition (page 5, line 10-15; page 14, line 4-5; page 17, line 10). Also note that claims 4-10 actually recite additional steps besides the steps of claim 1.
Regarding claim 4, Caroline teaches adding olive oil to the strained and presses yogurt (para. “Instructions”). Further, Wiessel as recited above teaches adding fruit puree to the yogurt.
Regarding claim 5, Wiessel teaches adding probiotics to yogurt for health benefit such as for improving intestinal microbial balance ([0045; 0059; 0076]. 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 Caroline by adding probiotics to the yogurt for improving intestinal microbial balance.
Regarding claim 7, Wiessel teaches homogenizing the mixture of yogurt and pectin at a temperature of 0.6-73. 8 degree Celsius (e.g., 33-165 F); homogenizing the mixture of yogurt, pectin and puree at a temperature of 0.6-73. 8 degree Celsius, and then sterilizing the mixture at a temperature of 85-121 degree Celsius (185-240 F) for 10 seconds to 40 min ([0081]).
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 Caroline by including the homogenization steps and sterilization step as disclosed by Wiessel so as to ensure the ingredients are homogenized and sterilized.
The temperature and/or time as disclosed by Wiessel encompass or is very close to the ranges recited in the claim. 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, the temperature of 85 ºC as disclosed by Wiessel is close to 81 ºC as discussed in the claim that one of ordinary skill in the art would expected to have the same property, given that both prior art and claimed invention are directed to heating a yogurt product. It has been held that a prima facie case of obviousness exists where the claimed ranges and prior art ranges do not overlap but are close enough that one skilled in the art would have expected them to have the same properties. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 227 USPQ 773 (Fed. Cir. 1985) (MPEP 2144.05).
Caroline in view of Wiesel does not follow the exact heating sequence as that recited in the claim. However, selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results. See In re Burhans, 154 F.2d 690, 69 USPQ 330 (CCPA 1946) (See MPEP 2144.04 IV).
Given that Caroline as modified by Wiessel teaches essentially the same heating steps as that recited in the claim, it logical follows that the heating process as disclosed by the prior art will yield a dry matter content that encompasses those recited in the claim. See MPEP 2112.01 I, where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977).
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Caroline in view of Ray, Scott, Uusi-Rauva, and Wiessel as applied to claims 1-2 above, and further in view of Nahas US Patent Application Publication No. 2010/0197812 (hereinafter referred to as Nahas).
Regarding claim 3, Caroline in view of Ray, Scott, Uusi-Rauva, and Wiessel teaches what has been recited above but is silent regarding an aqueous extract of spices with preserving effect, containing dissolved pectin.
Nahas teaches adding an antioxidant composition (e.g., an aqueous extract of spices) to yogurt so as to enhance the stability of the yogurt ([0036-0038; 0065]).
Both Caroline and Nahas are directed to yogurts. 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 Caroline by adding the aqueous extract of spices to yogurt to enhance the stability of the yogurt.
The combination of pectin and the aqueous extract of spices that has anti-oxidizing capability is interpreted to read on “an aqueous extract of spices with preserving effect, containing the pectin which is dissolved”, given that pectin is a soluble fiber.
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over Caroline in view of Ray, Scott, Uusi-Rauva, and Wiessel as applied to claim 1 above, and further in view of Buckholz US Patent No. 5,069,916 (hereinafter referred to as Buckholz).
Regarding claim 6, Caroline in view of Ray, Scott, Uusi-Rauva, and Wiessel teaches what has been recited above but is silent regarding correcting pH by adding sodium bicarbonate or potassium carbonate.
However, Wiessel teaches that it is suitable to adding buffer or agents for pH adjustment to yogurt to make it sufficiently palatable ([0059; 0080]. Buckholz teaches that in food applications, sodium bicarbonate can be used to adjust the pH of a food (column 2, line 30).
Both Caroline and Wiessel are directed to yogurt products, and where Wiessel teaches adding buffer or agents for pH adjustment to yogurt to make the yogurt sufficiently palatable, Buckholz teaches that sodium bicarbonate can be used to adjust the pH of a food. 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 Caroline by adding sodium bicarbonate to the yogurt to adjust the pH so as to make the yogurt sufficiently palatable.
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Caroline in view of Ray, Scott, Uusi-Rauva, and Wiessel as applied to claim 7 above, and further in view of Kevelam EP 1642504 A1 (hereinafter referred to as Kevelam).
Regarding claim 8, Caroline in view of Ray, Scott, Uusi-Rauva, and Wiessel teaches what has been recited above but is silent regarding apply a preserving coating to the pressed yogurt to protect it from surface contamination.
Kevelem teaches a coating to a food such as cheese so protect the food from contamination ([Abstract; 0002; 0014]).
Both Caroline and Kevelam are directed to fermented dairy products. 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 Caroline by applying a protective coating onto the pressed yogurt so as to protect it from surface contamination.
Modified Caroline is silent regarding maturing the product at 2-6 degree Celsius. However, one of ordinary skill in the art would have been motivated to refrigerate the yogurt cheese to extend its shell life. The temperature of refrigeration encompasses or overlaps with the temperature range recited in the claim.
As for the limitation about 1-3 months, modified Caroline teaches that yogurt product has an extended shell life of at least 3 months (Wiessel , [0008]). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have refrigerated the yogurt cheese for any duration depending on when to intake it. As such, the time as recited in the claim is merely an obvious variant of the prior art.
Refrigerating the yogurt would have matured it, since there is no manipulative difference between the prior art process and the process as claimed.
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Caroline in view of Ray, Scott, Uusi-Rauva, Wiessel and Kevelam as applied to claim 8 above, and further in view of Shah US Patent Application Publication No. 2006/0040027 (hereinafter referred to as Shah).
Regarding claim 9, Caroline in view of Ray, Scott, Uusi-Rauva, Wiessel and Kevelam teaches what has been recited above but is silent regarding grating or reducing to powder of the matured product to obtain a grated or powdered product.
Shah teaches that cheese powders have been used in a variety of food applications, and also teaches a process of grinding cheese into grated form ([0001-0005).
Both Caroline and Shah are directed to fermented dairy food/cheese. 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 Caroline by grinding the yogurt cheese into grated form such that it is suitable for a variety of food applications.
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Caroline in view of Ray, Scott, Uusi-Rauva, Wiessel, Kevelam and Shah as applied to claim 9 above, and further in view of Scharfmann US Patent No. 5,795,613 (hereinafter referred to as Scharfmann).
Regarding claim 10, Caroline in view of Ray, Scott, Uusi-Rauva, Wiessel, Kevelam and Shah teaches what has been recited above but is silent regarding heating the grated product at a temperature between 65-70 degree Celsius for 20-30 min.
Scharfmann teaches that thermal heating can be used to dry cheese if the temperature of heating is kept well below the melting point of the cheese (column 1, line 43-55).
Both Caroline and Scharfmann are directed to fermented dairy food/cheese. 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 Caroline by applying thermal heating for the purpose of drying the yogurt cheese.
Modified Caroline is silent regarding the temperature. However, where Scharfmann teaches that heating at a temperature that is below melting point of the cheese, one of ordinary skill in the art would have been motivated to heat the yogurt cheese at a temperature that could dry the product but will not melt the yogurt cheese. As such the temperature as recited in the claim is merely an obvious variant of the prior art.
As for the limitation about 20-30 min, the time of drying the yogurt cheese is a result effective variable because it determines how much water is removed from the product. One of ordinary skill in the art would have been motivated to vary the time of drying so as to obtain a final product with desired amount of moisture. As such, the time is merely an obvious variant of the prior art.
Claims 1-2, 4-5 and 7 are rejected under 35 U.S.C. 103 as being unpatentable over Milacron, "OT- Does whole fat plain Greek yogurt exist ?", published on March 12-17, 2014, retrieved from the Internet: https://www.practicalmachinist.com/forum/threads/ot-does-whole-fat-plain-greek-yogurt-exist.281782/ (hereinafter referred to as Milacron) in view of Ray, "Is it safe to microwave yogurt? - Quora" , published on 22 July 2016, retrieved from the Internet: https://www.quora.com/Is-it-safe-to-microwave-yogurt (cited in IDS, hereinafter referred to as Ray), Scott, “Cheesemaking Operations” in “Cheesemaking Practice”, Third edition, Springer Science, 1998, pages 165-192 (hereinafter referred to as Scott), Uusi-Rauva US Patent Application Publication No. 2015/0181903 (hereinafter referred to as Uusi-Rauva), and Wiessel US Patent Application Publication No. 2016/0073650 (hereinafter referred to as Wiessel).
Regarding claims 1-2, Milacron teaches a method of making a food product (e.g., Greek yogurt) from yogurt comprising the steps of straining the yogurt with a cheesecloth and pressing the yogurt with a plate to expel whey (page 2, by SW Bausch; page 12, by toag).
Milacron is silent regarding microwave heating the yogurt.
Ray teaches that microwave treatment of a yogurt will curdle the content with whey separating out (para. 1-2).
Both Milacron and Ray are directed to yogurts, and where Milacron discloses that it is desirable to separate whey from the rest of the yogurt product, Ray teaches that microwaving a yogurt could help to separate the whey out of yogurt and form a curdle.
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 Milacron by including the step of treating the yogurt with microwave before straining so as to help to separate whey from the yogurt product to form a curdle.
Milacron as modified by Ray teaches microwave treatment but is silent regarding the frequency and treatment time. However, it is known that microwave is electromagnetic wave with frequencies between 300 megahertz and 300 gigahertz. Further, one of ordinary skill in the art would have understood that the frequency of an electromagnetic wave such as microwave is related to the energy level (watts). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have varied the frequency of the microwave to ensure that the energy delivered by the microwave is sufficient in curdling the yogurt and separating whey from yogurt. As such, the frequency as recited in the claim is merely an obvious variant of the prior art.
Similarly, the one of ordinary skill in the art would also have understood that the duration of microwave treatment is a result effective variable because it affects the amount of energy delivered to the yogurt. One of ordinary skill in the art would have been motivated to vary the microwaving time (e.g., varying the energy delivered to the yogurt) so as to ensure more whey could be separated from the yogurt. As such, the time is merely an obvious variant of the prior art.
Milacron as modified Ray teaches microwave heating which helps to separate out whey and form a curdle, but is silent regarding heating the yogurt to a temperature of 60-65 degree Celsius.
Scott teaches heating (e.g., scalding) the cheese curd to cause it to shrink, to expel more whey and water from the curd, and to firm up the curd (page 174, 2nd para. and bottom para.). Uusi-Rauva teaches a method of making cheese comprising heating cheese curd at a temperature of 60-95 degree Celsius ([0008-0012]).
Milacron, Ray, Scott and Uusi-Rauva are all directed to fermented dairy products in which whey is separated out. 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 Milacron by microwave heating the yogurt to a temperature of 60-95 degree Celsius with reasonable expectation of success, for the reason that prior art has established that heating a fermented dairy curdle to 60-95 degree Celsius would help to expel more water and whey from casein protein.
The temperature as disclosed by Uusi-Rauva encompasses the temperature range as recited in the claim. 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).
Where Milacron as modified teaches that subjecting the yogurt to microwave heating will be able to achieve the effect of expelling whey and forming a curdle, it would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have skipped the traditional scalding step.
Milacron as modified by Ray, Scott, and Uusi-Rauva is silent regarding adding an emulsifying /stabilizing/gelling ingredient such as pectin to the yogurt.
In the same field of endeavor, Wiessel teaches adding a stabilizer such as pectin and fruit puree to yogurt, wherein pectin functions to stabilize the protein in the yogurt, and that the yogurt composition that has a stabilizer and puree has extended the shell life of the yogurt ([0083; 0081; 0059; 0008; 0073].
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 Milacron by adding pectin and puree to the yogurt so as to stabilize the protein and to extend the shell life of the yogurt. One of ordinary skill in the art, before the effective filing date of the claimed invention, would have had a reasonable expectation of success for doing so because the prior art has established that adding pectin and puree to yogurt could help to stabilize the protein in the yogurt and to extend the shell life of the yogurt.
It is noted that the instant claim 1 now recites that the method consists of the step of heating, straining, pressing and adding steps which excludes extra steps. In the instant case, Milacron as modified teaches the step of heating, straining, pressing and adding only which reads on a method consisting of the steps of claim 1. Note that the instant specification does not recite that the product upon production is stored as is, rather the instant specification recites the steps of storing the product under refrigeration condition (page 5, line 10-15; page 14, line 4-5; page 17, line 10). Also note that claims 4-10 actually recite additional steps besides the steps of claim 1.
Regarding claim 4, Wiessel as recited above teaches adding fruit puree to the yogurt.
Regarding claim 5, Wiessel teaches adding probiotics to yogurt for health benefit such as for improving intestinal microbial balance ([0045; 0059; 0076]. 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 Milacron by adding probiotics to the yogurt for improving intestinal microbial balance.
Regarding claim 7, Wiessel teaches homogenizing the mixture of yogurt and pectin at a temperature of 0.6-73. 8 degree Celsius (e.g., 33-165 F); homogenizing the mixture of yogurt, pectin and puree at a temperature of 0.6-73. 8 degree Celsius, and then sterilizing the mixture at a temperature of 85-121 degree Celsius (185-240 F) for 10 seconds to 40 min ([0081]).
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 Milacron by including the homogenization steps and sterilization step as disclosed by Wiessel so as to ensure the ingredients are homogenized and sterilized.
The temperature and/or time as disclosed by Wiessel encompass or is very close to the ranges recited in the claim. 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, the temperature of 85 ºC as disclosed by Wiessel is close to 81 ºC as discussed in the claim that one of ordinary skill in the art would expected to have the same property, given that both prior art and claimed invention are directed to heating a yogurt product. It has been held that a prima facie case of obviousness exists where the claimed ranges and prior art ranges do not overlap but are close enough that one skilled in the art would have expected them to have the same properties. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 227 USPQ 773 (Fed. Cir. 1985) (MPEP 2144.05).
Milacron in view of Wiesel does not follow the exact heating sequence as that recited in the claim. However, selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results. See In re Burhans, 154 F.2d 690, 69 USPQ 330 (CCPA 1946) (See MPEP 2144.04 IV).
Given that Milacron as modified by Wiessel teaches essentially the same heating steps as that recited in the claim, it logical follows that the heating process as disclosed by the prior art will yield a dry matter content that encompasses those recited in the claim. See MPEP 2112.01 I, where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977).
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Milacron in view of Ray, Scott, Uusi-Rauva, and Wiessel as applied to claims 1-2 above, and further in view of Nahas US Patent Application Publication No. 2010/0197812 (hereinafter referred to as Nahas).
Regarding claim 3, Milacron in view of Ray, Scott, Uusi-Rauva, and Wiessel teaches what has been recited above but is silent regarding an aqueous extract of spices with preserving effect, containing dissolved pectin.
Nahas teaches adding an antioxidant composition (e.g., an aqueous extract of spices) to yogurt so as to enhance the stability of the yogurt ([0036-0038; 0065]).
Both Milacron and Nahas are directed to yogurts. 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 Milacron by adding the aqueous extract of spices to yogurt to enhance the stability of the yogurt.
The combination of pectin and the aqueous extract of spices that has anti-oxidizing capability is interpreted to read on “an aqueous extract of spices with preserving effect, containing the pectin which is dissolved”, given that pectin is a soluble fiber.
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over Milacron in view of Ray, Scott, Uusi-Rauva, and Wiessel as applied to claim 1 above, and further in view of Buckholz US Patent No. 5,069,916 (hereinafter referred to as Buckholz).
Regarding claim 6, Milacron in view of Ray, Scott, Uusi-Rauva, and Wiessel teaches what has been recited above but is silent regarding correcting pH by adding sodium bicarbonate or potassium carbonate.
Wiessel teaches that it is suitable to add buffer or agents to yogurt for pH adjustment to make it sufficiently palatable ([0059; 0080]. Buckholz teaches that in food applications, sodium bicarbonate can be used to adjust the pH of a food (column 2, line 30).
Both Milacron and Wiessel are directed to yogurts, and where Wiessel teaches adding buffer or agents for pH adjustment to yogurt to make the yogurt sufficiently palatable, Buckholz teaches that sodium bicarbonate can be used to adjust the pH of a food. 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 Milacron by adding sodium bicarbonate to the yogurt to adjust the pH so as to make the yogurt sufficiently palatable.
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Milacron in view of Ray, Scott, Uusi-Rauva, and Wiessel as applied to claim 7 above, and further in view of Kevelam EP 1642504 A1 (hereinafter referred to as Kevelam).
Regarding claim 8, Milacron in view of Ray, Scott, Uusi-Rauva, and Wiessel teaches what has been recited above but is silent regarding apply a preserving coating to the pressed yogurt to protect it from surface contamination.
Kevelem teaches coating a food such as cheese so protect the food from contamination (Abstract; [0002; 0014]).
Both Milacron and Kevelam are directed to fermented dairy products/cheese. 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 Milacron by applying a protective coating onto the pressed yogurt so as to protect it from surface contamination.
Modified Milacron is silent regarding maturing the product at 2-6 degree Celsius. However, one of ordinary skill in the art would have been motivated to refrigerate the yogurt cheese to extend its shell life. The temperature of refrigeration encompasses or overlaps with the temperature range recited in the claim.
As for the limitation about 1-3 months, modified Milacron teaches that yogurt product has an extended shell life of at least 3 months (Wiessel , [0008]). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have refrigerated the yogurt cheese for any duration depending on when to consume it. As such, the time as recited in the claim is merely an obvious variant of the prior art.
Refrigerating the yogurt would have matured it, since there is no manipulative difference between the prior art process and the process as claimed.
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Milacron in view of Ray, Scott, Uusi-Rauva, Wiessel and Kevelam as applied to claim 8 above, and further in view of Shah US Patent Application Publication No. 2006/0040027 (hereinafter referred to as Shah).
Regarding claim 9, Milacron in view of Ray, Scott, Uusi-Rauva, Wiessel and Kevelam teaches what has been recited above but is silent regarding grating or reducing to powder of the matured product to obtain a grated or powdered product.
Shah teaches that cheese powders have been used in a variety of food applications, and also teaches a process of grinding cheese into grated form ([0001-0005).
Both Milacron and Shah are directed to fermented dairy food/cheese. 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 Milacron by grinding the yogurt cheese into grated form such that it is suitable for a variety of food applications.
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Milacron in view of Ray, Scott, Uusi-Rauva, Wiessel, Kevelam and Shah as applied to claim 9 above, and further in view of Scharfmann US Patent No. 5,795,613 (hereinafter referred to as Scharfmann).
Regarding claim 10, Milacron in view of Ray, Scott, Uusi-Rauva, Wiessel, Kevelam and Shah teaches what has been recited above but is silent regarding heating the grated product at a temperature between 65-70 degree Celsius for 20-30 min.
Scharfmann teaches that thermal heating can be used to dry cheese if the temperature of heating is kept well below the melting point of the cheese (column 1, line 43-55).
Both Milacron and Scharfmann are directed to fermented dairy food. 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 Milacron by applying thermal heating for the purpose of drying the yogurt cheese.
Modified Milacron is silent regarding the temperature. However, where Scharfmann teaches that heating at a temperature that is below melting point of the cheese, one of ordinary skill in the art would have been motivated to heat the yogurt cheese at a temperature that could dry the product but will not melt the yogurt cheese. As such the temperature as recited in the claim is merely an obvious variant of the prior art.
As for the limitation about 20-30 min, the time of drying the yogurt cheese is a result effective variable because it determines how much water is removed from the product. One of ordinary skill in the art would have been motivated to vary the time of drying so as to obtain a final product with desired amount of moisture. As such, the time is merely an obvious variant of the prior art.
Response to Declaration
The declaration under 37 CFR 1.132 filed 08/26/2025 is insufficient to overcome the rejection of pending claims based upon the references as set forth in the last Office action.
Declarant argues on page 2 of the declaration that the scalding as disclosed by Scott or Uusi is not applicable for use in the present invention. In particular, declarant argues that either Scott or Uusi is directed to cheese which is different in the composition from yogurt. Declarant further argues that the high temperature as disclosed by Uusi will lead to the destruction of the protein.
The argument is considered but found unpersuasive. It appears that declarant is stressing the difference between cheese curd and yogurt but is overlooking what they have in common. To this end, both cheese and yogurts are fermented dairy products and the curd part of the both comprises casein and have similar compositions. As such, one that is tasked with expelling whey from yogurt curd by heating will be motivated to consult Scott or Uusi and apply the temperature 60-95 degree Celsius to separate whey from curd with reasonable expectation of success, for the reason that prior art has establish that such a temperature is suitable for expelling whey from a milk curd.
Further Declarant’s assertion that the high temperature as disclosed by Uusi will lead to the destruction of the protein is very confusing, since the rejection is about microwaving the yogurt at the temperature of 60-95 degree Celsius, not about heating the yogurt at 60-95 degree Celsius by traditional means as disclosed by Uusi.
On the other hand, declarant has not demonstrated any new result associated with the temperature of 60-65 degree Celsius.
Declarant argues on page 2 of the declaration that heating under microwave provides for a relatively even and quick heating of yogurt, helps improve the yield, limits the denaturation of protein, and elimination of molds and yeast.
The argument is considered but found unpersuasive. To this end, prima facie obviousness is not rebutted by merely recognizing additional advantages or latent properties present but not recognized in the prior art. "The fact that appellant has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious." Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985). In the instant case, where it appears that the microwaving heating is the most important feature of the claimed invention, then Ray is the closest prior art to the claimed invention. It just happens that Ray teaches microwave heating the yogurt, thus all the aforementioned advantages are flowing within the teaching of Ray.
Declarant argues on page 3 of the declaration that the process of Kevelam is not applicable to the presented invention. In particular, declarant argues that coconut oil as used in the claimed invention is different from wax coating of Kevelam, and that wax coating applied at a high temperature will destroy the yogurt product.
The argument is considered but not persuasive because first, declarant is arguing a feature that is not claimed. No present recites using coconut oil to coat the yogurt. Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). Second, declarant’s assertion that wax coating applied at a high temperature is destructive is essentially conclusive remarks that lack evidentiary support. On the other hand, one skilled in the person will reasonably tweak the condition of coating to ensure the intactness of the yogurt. Declarant is underestimating the level of one of ordinary skill in the art.
Declarant argues on pages 4-5 of the declaration that the process of Shah is not applicable to the use in a yogurt. In particular, declarant argues that shah is dealing with cheese not yogurt cheese. Further, declarant argues that the shape and size of the grated product in the presented invention are different from those of Shah.
The arguments are considered but found unpersuasive because first, both Caroline and Shah are directed to fermented dairy food/cheese thus 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 Caroline by grinding the yogurt cheese into grated form such that it is suitable for a variety of food applications. Second, declarant is again arguing a feature that is not claimed. There is no claim reciting size and shape of the yogurt.
For the reason set forth above, declarant’s argument on page 5 of the declaration regarding that Scharmann’s drying of cheese is not appliable to yogurt is not persuasive, either.
The examiner notes that declarant is discussing the feature of heating without scalding on pages 5-6 of the declaration.
Declarant is remined that the feature of heating without scalding has been determined not to be supported by the disclosure as originally filed. And to this end, the instant claims have been amended to delete such a limitation thus the discussion of this limitation is moot.
Declarant asserts unexpected result on pages 7-8 in view of Wiessel.
It appears that declarant has compared the yogurt product obtained from the process as claimed with Wiessel and concludes that the addition of pectin to yogurt as described by Wiessel is not possible to achieve the parameters of the claimed yogurt product. However, declarant is reminded that Wiessel is a teaching reference which is cited to modify Caroline by adding an additive to the yogurt thus it makes little sense comparing the product of Wiessel with the claimed product. Wiessel is not the closest prior art.
Declarant agues on page 8 of the declaration that Caroline teaches adding olive oil to the strained yogurt and Wiessel teaches adding fruit to the yogurt. Adding olive oil and fruit cannot achieve the physical parameters of the claimed invention.
The argument is considered but found unpersuasive. Declarant is arguing a feature that is not claimed. No instant claims recites excluding olive oil or fruit. As a matter of fact, instant specification (e.g., page 8, line 16) recites adding fruit to the yogurt.
Declarant arguing on page 8 of the declaration that Wiessel teaches adding probiotics to the yogurt, which does not match the present invention.
Declarant is invited to refer to instant claim 5, which teaches adding probiotics to yogurt.
Declarant argues on pages 8-11 of the declarant that Wiessel teaches a homogenization step and a sterilization which will produce a different product form the claimed product.
The argument is considered but found irrelevant to the rejection. Wiessel is cited to teach the additive not the homogenization or sterilization steps.
Declarant argues on page 11 of the declaration that maturing the yogurt at a temperature of 2-6 °C yields unexpected results in view of Wiessel.
It is very puzzling why the declarant is attempting to compare the claimed invention with Wiessel and assert unexpected result. For the record, Wiessel is cited to teach adding pectin or other additives to stabilize the protein in the yogurt, and to extend the shell life of the yogurt. Wiessel’s yogurt is different from the claimed product and Wiessel is not the closest prior art to begin with. What declarant basically does is to compare the claimed product with a random yogurt and quickly praises how superior the claimed product is. Such a comparison makes little sense.
Declarant argues on pages 11-12 of the declaration (para. 7) that Caroline or Milacron does not teach the microwaving hating step.
The argument is considered but found piecemeal. The rejection is over Caroline as modified by Ray, Scott, Uusi and Wiessel, or over Milacron as modified by Ray, Scott, Uusi and Wiessel, not over Caroline or Milacron alone. To this end, Ray teaches microwave heating.
Declarant argues on pages 13-15 of the declaration that the process step presented by Nahas will yield a product different from the claimed product.
Declarant is correct in asserting the product of Nahas is different from the claimed product. However, since Nahas is cited to teach the aqueous extract of spices as opposed to the process or the product, comparing the process of Nahas with the claimed process makes little sense.
For the same reason set forth above, declarant’s argument on page 15 of the declaration regarding that Buckholz yield a different product from the claimed product is not persuasive, either.
Response to Arguments
Applicant's arguments filed 08/26/2025 have been fully considered and the examiner’s response is shown below;
The 35 USC 112(a) rejection is withdrawn in view of the amendment made to claim 1.
Regarding the 35 USC 103 rejection over Caroline as modified by Ray, Scott, Uusi and Wiessel, applicant argues on pages 5-6 of the Remarks that none of the references teaches the method that consists of the steps of claim 1. In particular, applicant argues that Caroline teaches cooling and does not start with heating, that Ray is silent regarding where the microwaving would occur, that Scott or Uusi teaches a cheesemaking process which is nowhere close the yogurt manufacturing process or the same order, and that Wiessel does not teach the order as recited in claim 1 or heating in the beginning of the process.
The arguments are considered but found unpersuasive because Caroline as modified teaches the step of heating, straining, pressing and adding which encompasses all the steps of claim 1. Further, although Caroline teaches the extra steps of packing and storing the product under refrigeration condition, Caroline’s steps of prior to packing as modified by Ray, Scott, and Uusi and Wiessel reads on a method consisting of the steps of claim 1. Note that the instant specification does not recite that the product upon production is stored as is, rather, the instant specification recites the steps of storing the product under refrigeration condition (page 5, line 10-15; page 14, line 4-5; page 17, line 10). Also note that claims 4-10 actually recite additional steps besides the steps of claim 1.
Further, the arguments regarding Ray being silent when or where the microwaving is conducted is not accurate or is piecemeal. Caroline as modified by Ray reasonably teaches subjecting a yogurt to microwave before straining because the purpose of microwaving is shrinking the curd to expel water thus it will makes more sense if the microwave heating is performed before straining and pressing steps which serve to separate the whey from curd. See para. 15 of the OA issued 02/26/2025.
Further, the arguments regarding Scott or Uusi being not in the same endeavor are presented before to which the examiner has replied. See para. 67 of the OA issued 07/13/2023. Additionally, the arguments that Scott or Uusi-Rauva does not teach the order of steps are piecemeal. The rejection is over Caroline as modified by Ray, Scott, Uusi and Wiessel, which in combination arrives at the order as recited in the claim. Note that Scott or Uusi-Rauva is cited to the temperature to shrink the curd such whey can be separated.
For the same reason set for the above, the arguments regarding Wiessel failing to teach the order as recited in claim 1 or a heating in the beginning of the process are not persuasive.
All the arguments regarding the declaration filed by Mr. Radev on 08/26/2025 is addressed in the “Response to the Declaration” above.
For the reasons set forth above, applicant’s arguments on pages 7-8 of the Remarks regarding depending claims 3-10 are not persuasive, either.
Regarding Milacron, applicant argues on page 9 of the Remarks that the cited portion of Milacron only describes a way to heat milk without scalding it. Milacron does not describe when yogurt would be heated, or any of the related requirements related to frequency (especially because Milacron does not describe microwave heating at all), temperature and/or time, or any other steps of a singular and cohesive manufacturing method.
The argument is considered but found inaccurate or piecemeal. Inaccurate because Milacron is cited to teach straining and pressing the yogurt, not heating without scalding. Piecemeal because the heating, the heating condition or the timing of heating is taught by other cited arts.
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.
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/CHANGQING LI/Primary Examiner, Art Unit 1791