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 .
Examiner Note
Any objections and/or rejections that are made in the previous actions and are not repeated below, are hereby withdrawn.
In view of the appeal brief filed on 03/10/2026, PROSECUTION IS HEREBY REOPENED. New Ground of rejection are set forth below.
To avoid abandonment of the application, appellant must exercise one of the following two options:
(1) file a reply under 37 CFR 1.111 (if this Office action is non-final) or a reply under 37 CFR 1.113 (if this Office action is final); or,
(2) initiate a new appeal by filing a notice of appeal under 37 CFR 41.31 followed by an appeal brief under 37 CFR 41.37. The previously paid notice of appeal fee and appeal brief fee can be applied to the new appeal. If, however, the appeal fees set forth in 37 CFR 41.20 have been increased since they were previously paid, then appellant must pay the difference between the increased fees and the amount previously paid.
A Supervisory Patent Examiner (SPE) has approved of reopening prosecution by signing below:
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791
Claim status
Claims 1, 7 and 14-15 are pending in the application and are previously presented. Claims 2-6, 8-13 remain cancelled. Claims 1, 7 and 14-15 are hereby examined on the merits.
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.
Claim 1, 7 and 14-15 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 1, 7 and 14-15 recite “An umami savory brothy flavor ferment having an ingredient statement identical to natural cheese” in the preamble. However, it is unclear what a natural cheese encompasses. Does it limit the way the cheese is produced? Does it limit the ingredients a cheese need to include or exclude? Note that there are numerous natural cheeses in the world and the ingredients of which vary. It is further unclear what the “ingredient statement” means. Does it mean what ingredients are in the flavor ferment?. Clarification is required.
Claim 1 or claim 7 recites in line 5-6 “wherein the umami savory brothy flavor has the same umami savory brothy flavor as processed cheese”. One of the ordinary skill in the art is not apprised the scope of the limitation because it is unclear what kind of umami savory brothy flavor a processed cheese must have such that a flavor ferment has the same the umami savory brothy flavor of a processed cheese. After all, there are so many types of processed cheeses in the world. Clarification is required.
Claim 14 recites the ratio of free glutamic acid to the total free amino acids is 10-15%. It is unclear whether the percent is weight percent or molar percent. For the purpose of examination, it is interpreted that the percent is molar percent. Clarification 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 and 14-15 are rejected under 35 U.S.C. 103 as being unpatentable over Crow US Patent Application Publication No. 2005/0123646 A1 (hereinafter referred to as Crow) in view of Brown CA 2280551 A1 (hereinafter referred to as Brown), Bagnasco, “Use of food-grade protease to recover umami protein-peptide mixtures from rice middlings”, Food Research International 2013, 50, pages 420-427 (hereinafter referred to as Bagnasco), Dias US Patent Application Publication No. 2005/0112238 A1(hereinafter referred to as Dias) and OH US Patent Application Publication No. 2016/0113315 A1 (hereinafter referred to as OH).
Regarding claim 1, Crow teaches a method for producing a flavor ferment (e.g., cheese flavor ingredient; 0007) for enhancing the flavor of cheese (0073), the method comprising the steps of: providing a milk substrate (0008; 0013-0014, a mixture of dairy protein and water, where the dairy protein is one or more of whole milk powder, milk protein concentrate, a casein, etc.); pasteurizing the milk substrate (0058; the reaction mixture is heated at a temperature of 93 °C for 15 min to inactivate microbes); adding an enzyme (e.g., protease) to the pasteurized milk substrate and then incubating to produce an enzyme mixture (0009; 0061; 0020); inactivating the enzyme mixture (0021) which necessarily produces a cooled mixture the moment the heating source is removed; inoculating the enzyme mixture with a starter culture to produce a pre-fermentation mixture (0010); fermenting the pre-fermentation mixture at temperature of 25-50 °C); and pasteurizing the fermented mixture to produce the flavor ferment (0068, terminating the fermentation by heating at a temperature of 93 °C for 15 min; according to 0058, such a heating condition is able to inactive microbes as well, thus reading on the limitation about the pasteurization).
Crow teaches that the protease is Protease A, Neutrase, Flavorpro 192P etc. (0017-0018) thus being silent regarding an aminopeptidase having a CAS no. of 9001-61-0. Crow teaches that that starter culture includes Enterococcus faecium, Enterococcus faecalis, Enterococcus casseliflavus, etc., (0010), thus being silent regarding Lactobacillus helveticus. Crow is further silent regarding the flavor ferment having an umami brothy flavor.
Brown in the same field of endeavor teaches a method of producing a flavored component for use in cheese manufacture, the method comprising adding an enzyme system to a milk substrate which is an aqueous dairy protein source (page 5, line 12-25), wherein the dairy protein source includes milk protein concentrate, whey protein concentrate and non-fat dry milk (page 6, line 10-14), wherein the enzyme system includes 0.2-0.4% protease in powdered form (e.g. , Flavourzyme) by weight of the milk substrate (page 8, first para.) and a peptidase source (e.g., Lactobacillus helveticus) (page 8, 2nd para.). Further, Brown includes an example in which pasteurized milk substrate is treated with Flavorzyme first, followed by incubating the enzyme-treated milk substrate with Lactobacillus helveticus and an inactivation step (page 11, Example 1).
Bagnasco teaches that treating a substrate containing protein (e.g., rice middlings) with Flavourzyme will result in composition having umami flavor, due to the proteolytic activity of the enzyme on the protein (Abstract; Fig. 4; page 424 right hand column, para. 1-3).
Dias in the same field of endeavor teaches a method of making a cheese flavoring system comprising fermenting a milk substrate with a starter culture comprising Lactobacillus helveticus in the presence of a protease (0069-0070; 0075), additionally, Dias teaches that Lactobacillus helveticus is a LAB with aminopeptidase activity, and the aminopeptidase in concert with the protease creates a high concentration of free amino acids and small peptides that contributes to the cheese flavor (0075).
Crow, Brown and Dias are all directed to treating a milk substrate with a protease and a lactic acid bacteria to produce a flavoring composition; wherein Brown teaches treating a substrate comprising protein with Flavourzyme, Bagnasco teaches that treating a protein-containing substrate with Flavourzyme will result in composition having umami flavor; and wherein Brown teaches treating a milk substrate with Lactobacillus helveticus, Dias teaches that Lactobacillus helveticus is a LAB with aminopeptidase activity, and the aminopeptidase in concert with the protease creates a high concentration of free amino acids and small peptides that contributes to the flavor (0075). 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 Crow by replacing the protease of Crow with Flavorzyme protease for making a flavor fermenting with umami flavor, and replacing the starter culture of Crow with Lactobacillus helveticus so as to create a high concentration of free amino acids and small peptides that contributes to the flavor the flavor ferment. Further, MPEP 2144.06 II states that substituting equivalents known for the same purpose is prima facie obvious thus in the instant case, where prior art has established that Flavourzyme, Protease A, Neutrase and Flavorpro 192P are functional enzyme equivalents in cleaning milk protein for imparting flavor, and Lactobacillus helveticus, Enterococcus faecium, Enterococcus faecalis and Enterococcus casseliflavus are functional bacterial equivalents in fermenting milk substrate for imparting flavor, therefore, it would have been obvious to substitute one for another for the same purpose).
Note that Flavorzyme is the aminopeptidase that has a CAS no. 9001-61-0.
Crow as modified by Brown, Bagnasco and Dias teaches a flavor ferment having an umami flavor, but is silent regarding the concentration of the free glutamic acid in the flavor ferment.
OH in the field of flavor art teaches that glutamic acid is the main contributor of an umami flavor (0029). On the other hand, the amino acids profile of a product resulting from protease incubation and LAB fermentation of a milk substate is necessarily a parameter of the protein composition in the milk substrate, the enzymatic reaction condition (e.g., dosage, temperature, duration, etc.), or the fermentation condition (e.g., inoculum size, duration of fermentation), given that protease enzyme and the enzyme from LAB work individually or together to cleave the milk protein in the milk substrate. Further, the concentration of free glutamic acid in the flavor ferment is also a parameter of the dry matter amount especially the protein dry matter amount in the milk substate. Therefore, one of ordinary skill in the art would have been motivated to manipulate the dry matter content in the milk substrate and the above conditions to ensure an effective production of the umami flavor component (e.g., glutamic acid) and that the final flavor ferment has a desired intensity of umami flavor. As such, the concentration of the free glutamic acid as recited in claim 1 is merely an obvious variant of the prior art.
Crow as modified with Brown, Bagnasco, Dias and OH teaches treating a milk substrate with Flavourzyme which will produce a flavor ferment having umami flavor. Further, cited arts in combination teaches treating a milk substrate with Flavorzyme and Lactobacillus helveticus which is the same as the claimed invention. Therefore, the limitation about the flavor ferment having an umami brothy flavor of processed cheese is met by the cited arts in combination. Note that the instant specification (0031 and Table 3) recites that treating a milk substrate with such a combination will result in a flavor ferment having an umami savory brothy flavor.
Given that Crow as modified with Brown, Bagnasco, Dias and OH arrives at the claimed method (e.g., inoculating the same milk substrate with an enzyme followed by inactivation and fermenting the enzyme treated milk substrate with the same culture), it logically follows that the method as disclosed by prior art would have resulted in a flavor ferment with an ingredient statement identical to a natural cheese. See In re Best.
Regarding claim 14, Crow as modified with Brown, Bagnasco, Dias and OH teaches a method of producing a flavor ferment in connection with claim 1, which is incorporated by reference.
Further, the reasoning as relied upon in rejecting the claim 1 limitation about the concentration of the free glutamic acid in the flavor ferment is partly applicable to the limitation about the ratio of free glutamic acid to the total free amino acids as recited in claim 31. In particular, knowing that glutamic acid is the main contributor of an umami flavor, and that the amino acids profile of a product resulting from protease incubation and LAB fermentation of a milk substate is necessarily a parameter of the protein composition of the milk substrate the enzymatic reaction condition (e.g., dosage, temperature, duration, etc.), or the fermentation condition (e.g., inoculum size, duration of fermentation), one of ordinary skill in the art would have been motivated to manipulate the above conditions ensure an effective production of the umami flavor component (e.g., glutamic acid). As such, the ratio of free glutamic acid to total free amino acids as recited in claim 14 is merely an obvious variant of the prior art.
Regarding claim 15, Crow as modified with Brown, Bagnasco, Dias and OH teaches a method of producing a flavor ferment in connection with claim 1, which is incorporated by reference.
Further, the reasoning as relied upon in rejecting the claim 1 limitation about the concentration of the free glutamic acid to the total free amino acids is partly applicable to the limitation that the free glutamic acid in mass being greater than any other free amino acids in the flavor ferment as recited in claim 15. In particular, knowing that glutamic acid is the main contributor of an umami flavor, and that the amino acids profile of a product resulting from protease incubation and LAB fermentation of a milk substate is necessarily a parameter of the protein composition of the milk substrate, the enzymatic reaction condition (e.g., dosage, temperature, duration, etc.), or the fermentation condition (e.g., inoculum size, duration of fermentation), one of ordinary skill in the art would have been motivated to manipulate the above conditions to ensure the main umami component glutamic acid is dominant among all the free amino acid. As such, the limitation that the free glutamic acid is in a mass that is greater than other free amino acid is merely an obvious variant of the prior art.
Claims 1 and 14-15 are rejected under 35 U.S.C. 103 as being unpatentable over Washizu US Patent No. 8,993,016 B2 (cited in the IDS filed 09/06/2022, hereinafter referred to as Washizu) in view of Bagnasco, “Use of food-grade protease to recover umami protein-peptide mixtures from rice middlings”, Food Research International 2013, 50, pages 420-427 (hereinafter referred to as Bagnasco), and OH US Patent Application Publication No. 2016/0113315 A1 (hereinafter referred to as OH).
Regarding claim 1, Washizu teaches a method for producing a flavor ferment (e.g., a flavor enhancer) comprising the steps: providing a milk substrate (e.g., a total milk protein which is also called milk protein concentrate, column 3, line 51-58); pasteurizing the milk substrate to produce a pasteurized milk substrate (column 7, line 63-65); adding a protease enzyme to the pasteurized milk substrate and then incubating to produce an enzyme mixture, wherein the protease enzyme is one or more of Protease N, Flavourzyme, Protease A, Debitrase, Denapsin 2P, Kokulase P, etc. (column 3, line 41-48; column 5, line 10-32); inactivating the protease by heating at a temperature of 70-90 °C (column 5, line 49-51); inoculating the enzyme treated mixture with a lactic acid bacteria such as Lactobacillus helveticus and fermenting the mixture at a temperature of 25-45 °C to produce a fermented mixture (column 3, line 41-48; column 4, line 25-44; column 5, line 2), and pasteurizing the fermented milk which necessarily produces the flavor ferment (column 8, line 65-column 9, line 1-2). Necessarily a cooled enzyme mixture is formed after heat inactivation but before inoculation, since the moment the enzyme mixture is removed the heat source, the cooling starts, and that the heating inactivation is conducted at a higher temperature than fermentation temperature.
Washizu teaches a flavor ferment made by treating a milk substrate with a protease enzyme such as Protease N, Flavourzyme, Protease A, Debitrase, Denapsin 2P, Kokulase P, etc., but is silent regarding the flavor ferment has an umami brothy flavor.
Bagnasco teaches that treating a substrate containing protein (e.g., rice middlings) with Flavourzyme will result in composition having umami flavor, due to the proteolytic activity of the enzyme (Abstract; Fig. 4; page 424 right hand column, para. 1-3).
Both Washizu and Bagnasco are directed to treating a protein-containing substrate with Flavourzyme. 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 by selecting Flavourzyme as the protease to treat the milk substrate so as to obtain a flavor ferment having an umami flavor. 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 prior art has established that treating a protein with Flavourzyme will result in an umami flavor. Note that Flavorzyme is the aminopeptidase that has a CAS no. 9001-61-0.
Washizu as modified by Crow and Bagnasco teaches a flavor ferment having an umami flavor, but is silent regarding the concentration of the free glutamic acid in the flavor ferment.
OH in the field of flavor art teaches that glutamic acid is the main contributor of an umami flavor (0029). On the other hand, the amino acids profile of a product resulting from protease incubation and LAB fermentation of a milk substate is necessarily a parameter of the protein composition in the milk substrate, the enzymatic reaction condition (e.g., dosage, temperature, duration, etc.), or the fermentation condition (e.g., inoculum size, duration of fermentation), given that protease enzyme and the enzyme from LAB work individually or together to cleave the milk protein in the milk substrate. Further, the concentration of free glutamic acid in the flavor ferment is also a parameter of the dry matter amount especially the protein dry matter amount in the milk substate. Therefore, one of ordinary skill in the art would have been motivated to manipulate the dry matter content in the milk substrate and the above conditions to ensure an effective production of the umami flavor component (e.g., glutamic acid) and that the final flavor ferment has a desired intensity of umami flavor. As such, the concentration of the free glutamic acid as recited in claim 1 is merely an obvious variant of the prior art.
Washizu as modified by Bagnasco and OH teaches treating a milk substrate with Flavourzyme which will produce a flavor ferment having umami flavor. Further, cited arts in combination teaches treating a milk substrate with Flavorzyme and Lactobacillus helveticus which is the same as recited in the instant claim. Therefore, the limitation about the flavor ferment having an umami brothy flavor of processed cheese is met by the cited arts in combination. Note that the instant specification (0031 and Table 3) recites that treating a milk substrate with such a combination will result in a flavor ferment having an umami savory brothy flavor.
Given that Washizu as modified by Bagnasco and OH arrives at the claimed method (e.g., inoculating the same milk substrate with an enzyme followed by inactivation and fermenting the enzyme treated milk substrate with the same culture), it logically follows that the method as disclosed by prior art would have resulted in a flavor ferment with an ingredient statement identical to a natural cheese. See In re Best.
Regarding claim 14, Washizu as modified by Bagnasco and OH teaches a method of producing a flavor ferment in connection with claim 1, which is incorporated by reference. Note that Flavorzyme is the aminopeptidase has a CAS no. 9001-61-0.
Further, the reasoning as relied upon in rejecting the claim 1 limitation about the concentration of the free glutamic acid in the flavor ferment is partly applicable to the limitation about the ratio of free glutamic acid to the total free amino acids as recited in claim 14. In particular, knowing that glutamic acid is the main contributor of an umami flavor, and that the amino acids profile of a product resulting from protease incubation and LAB fermentation of a milk substate is necessarily a parameter of protein composition of the milk substrate, the enzymatic reaction condition (e.g., dosage, temperature, duration, etc.), or the fermentation condition (e.g., inoculum size, duration of fermentation), one of ordinary skill in the art would have been motivated to manipulate the above conditions ensure an effective production of the umami flavor component (e.g., glutamic acid). As such, the ratio of free glutamic acid to total free amino acids as recited in claim 14 is merely an obvious variant of the prior art.
Regarding claim 15, Washizu as modified by Bagnasco and OH teaches a method of producing a flavor ferment in connection with claim 1, which is incorporated by reference.
Further, the reasoning as relied upon in rejecting the claim 1 limitation about the concentration of the free glutamic acid to the total free amino acids is partly applicable to the limitation that the free glutamic acid in mass being greater than any other free amino acids in the flavor ferment as recited in claim 15. In particular, knowing that glutamic acid is the main contributor of an umami flavor, and that the amino acids profile of a product resulting from protease incubation and LAB fermentation of a milk substate is necessarily a parameter of the protein composition of the milk substrate, the enzymatic reaction condition (e.g., dosage, temperature, duration, etc.), or the fermentation condition (e.g., inoculum size, duration of fermentation), one of ordinary skill in the art would have been motivated to manipulate the above conditions to ensure the main umami component glutamic acid is dominant among all the free amino acid. As such, the limitation that the free glutamic acid is in a mass that is greater than other free amino acid is merely an obvious variant of the prior art.
Response to Arguments
Appellant’s arguments filed 03/10/2026 have been fully considered but are found not persuasive.
Appellant argues on pages 5 and 9 of the Brief that Crow does not teach a cheese flavor ingredient that has the Standard of Identity of a natural cheese due to the addition of an emulsifying salt.
The arguments are considered but found unpersuasive because it is unclear what the Standard of Identity of a natural cheese is referring to. Attention is drawn to the 35 USC 112 (b) rejection of the limitation that an ingredient statement is identical to natural cheese in the instant office action.
On the other hand, it appears that in Crow, the emulsifying salt is used when the substrate is cheese and is for forming an emulsion (see para. 0013 and 0054 of Crown). Crow also includes the embodiment that the substrate is not a cheese or an emulsion. Rather, it could be milk or milk components in which case the emulsifying salt is not needed.
Appellant argues on page 6 of the Brief that Crow teaches a general cheese flavor profile as opposed to a specific umami flavor.
The argument is considered but found piecemeal, since the rejection is over Crow as modified by Brown, Bagnasco, Diaz and Oh. To this end, since the arts in combination disclose treating a milk substrate with Flavourzyme and Lactobacillus helveticus which is the same as the invention as claimed, it thus logically follows that the umami flavor is obtained by prior art.
Appellant argues on pages 6-7 of the Brief that Crow does not teach Lactobacillus helveticus or an aminopeptidase and there is no motivation to modify Crow to use Lactobacillus helveticus or the aminopeptidase and there is no reasonable expectation of success. Appellant further argues that the Office does not provide a reason to use Lactobacillus helveticus or the aminopeptidase.
The argument is considered but found unpersuasive. The motivation to substitute Lactobacillus helveticus for the bacteria of Crow and to substitute an aminopeptidase (e.g., Flavourzyme) for the enzyme of Crow is provided in the para. 15 of the office action issued 08/28/2025 which states that 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 Crow by replacing the protease of Crow with Flavorzyme protease for making a flavor fermenting with umami flavor, and replacing the starter culture of Crow with Lactobacillus helveticus so as to create a high concentration of free amino acids and small peptides that contributes to the flavor the flavor ferment.
Further, MPEP 2144.06 II states that substituting equivalent known for the same purpose is prima facie obvious thus in the instant case, where prior art has established that Flavourzyme, Protease A, Neutrase and Flavorpro 192P are functional enzyme equivalents in cleaning milk protein for imparting flavor, and Lactobacillus helveticus, Enterococcus faecium, Enterococcus faecalis and Enterococcus casseliflavus are functional bacterial equivalents in fermenting milk substrate for imparting flavor, therefore, it would have been obvious to substitute one for another for the same purpose).
On the other hand, since it is known to use Lactobacillus helveticus to ferment a milk substrate and to use an aminopeptidase to cleave milk protein to product flavor ferment, there is a reasonable expectation of success.
Appellant argues on page 6 of the Brief that according to the Declaration filed 02/06/2025, there is no motivation or reasonable expectation of success to modify Crow to replace the enzyme and the lactic acid ferment of Crow with Flavourzyme and Lactobacillus helveticus.
The examiner disagrees. The Declaration filed 02/06/2025 has been addressed in the office action issued 04/02/2025 (see para. 52-57).
Appellant argues on pages 6-7 of the Brief that Crow reference teaches Enterococcus, Staphylococcus or Pseudomonas as the proper bacteria and a blend of proteinase and peptidase as the enzyme for use, and there is no suggestion to use a different bacteria or enzyme. The examiner cites Brown, Bagnasco and Diaz to teach L. helveticus or an aminopeptidase but the Office does not give reason why a skilled person will modify Crow to use another bacteria such as L. helveticus among the multitude of bacteria available to those skilled in the art.
The argument is considered but found unpersuasive. Contrary to appellant’s opinion, the Office actually provides a reason to modify Crow to use L. helveticus or an aminopeptidase. See para. 15 of the final rejection issued 08/28/2025 which states that 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 Crow by replacing the protease of Crow with Flavorzyme protease for making a flavor fermenting with umami flavor, and replacing the starter culture of Crow with Lactobacillus helveticus so as to creates a high concentration of free amino acids and small peptides that contributes to the flavor the flavor ferment.
Further, MPEP 2144.06 II states that substituting equivalents known for the same purpose is prima facie obvious thus in the instant case, where prior art has established that Flavourzyme, Protease A, Neutrase and Flavorpro 192P are functional enzyme equivalents in cleaning milk protein for imparting flavor, and Lactobacillus helveticus, Enterococcus faecium, Enterococcus faecalis and Enterococcus casseliflavus are functional bacterial equivalents in fermenting milk substrate for imparting flavor, therefore, it would have been obvious to substitute one for another for the same purpose).
Further, the examiner submits that there is no requirement that the primary reference Crow needs to have a suggestion to use a different enzyme or bacteria. The motivation can be in a secondary reference (e.g., Brown, Bagnasco, Dias in the instant case).
Further, although there might be a multitude of bacteria available to those skilled in the art, the rejection relied upon L. helveticus as specifically taught by the secondary references Brown and Diaz.
Appellant argues on pages 7 of the Brief that one of ordinary skill in the art would not look to the teaching of Bagnasco which treats a non-dairy protein source with Flavourzyme. Appellant further argues that the Office fails to provide an explanation as to why the teaching of Bagnasco would apply to milk protein.
Appellant’s arguments are considered but found unpersuasive. Bagnasco is cited to teach that treating a protein substrate with Flavourzyme will result in a composition having umami flavor, due to the proteolytic activity of the enzyme on the protein. Bagnasco is not cited to teach treating milk with Flavourzyme. To this end, it is found that the feature of treating a milk substrate with Flavourzyme for flavoring purpose is known before the effective filling date of the claimed invention, for example, both Brown and Washizu as cited in the rejection teach cleaving milk protein with Flavourzyme for generating flavor (see Brown page 8, first para and Washizu column 3, line 41-48; column 5, line 10-32). Therefore, given that it is known that Flavourzyme could cleave a milk substrate for creating a flavor ferment, and that Flavourzyme would cleave a protein to produce umami flavor, one of ordinary skill in the art would have chosen Flavourzyme to cleave a milk protein for the purpose of developing flavor ferment having umami flavor.
Appellant argues on page 7 of the Brief that Crow does not mention an umami flavor.
The argument is piecemeal. Where cited arts in combination arrive at the steps of treating a milk substrate with Flavourzyme and Lactobacillus helveticus, the umami flavor is taught by the arts.
Appellant argues on page 8 of the Brief that the Office action has used impermissible hindsight to reject the claims.
The argument is considered but found unpersuasive. In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971). In the instant case, the examiner submits that appellant has not shed light on which limitation in the claims is solely from appellant’s own disclosure.
Regarding the limitation about the ratio of free glutamic acid to total free amino acids, the limitation about the amount of the free glutamic acid, or the limitation that the amount of free glutamic acid is greater than the mass of any other free amino acids, appellant argues on pages 8-9 and the para. that bridges pages 10 and 11 of the Brief that the ratio or the amount of glutamic acid is not an obvious variant of the prior art, rather, it is a specific result of the specific ingredients used in the flavor ferment to produce a specific flavor profile. Appellant further argues that the Office gives no basis for concluding that changing the bacteria, flavor, dry matter content of the substrate, enzymatic reaction conditions, and fermentation conditions will arrive at the ratio as claimed.
The examiner disagrees. It is noted that Crow as modified by Brown, Bagnasco, Dias and OH teaches the same ingredients (e.g., the milk substrate, enzyme and bacteria) as the claimed invention. Further, where prior art establishes that glutamic acid is the main contributor of an umami flavor and that it is known that the amino acids profile of a product resulting from protease incubation and bacteria fermentation of a milk substate is necessarily a parameter of the protein composition in the milk substrate, the enzymatic reaction conditions (e.g., dosage, temperature, duration, etc.), or the fermentation conditions (e.g., inoculum size, duration of fermentation), therefore, one of ordinary skill in the art would have been motivated to manipulate the above conditions to ensure that the amount of free glutamic acid in the flavor ferment is such that a desired umami flavor intensity is obtained.
Further, it is noted that appellant has not shown new result associates with the ratio or the amount of glutamic acid.
Appellant argues on pages 8-9 of the Brief that Crow fails to teach an umami flavor of processed cheese. Appellant further argues that the Office’s conclusion that that the umami flavor of prior art is the same as processed cheese is not supportable.
The argument is considered but found unpersuasive. The limitation about an umami flavor of processed cheese is now rejected for being indefinite. See para. 7 of the instant office action.
On the other hand, given that cited arts in combination teach treating a milk substrate with Flavourzyme and Lactobacillus helveticus which is the same as the claimed invention, the limitation about the flavor ferment having an umami brothy flavor of processed cheese is met by the prior art. Note that the instant specification (Table 3) recites that treating a milk substrate with such a combination of the enzyme and the bacteria will result in a flavor ferment having an umami savory brothy flavor.
The response above is applicable to the arguments on pages 12-13 of the Brief to the rejection over Washizu as modified by Bagnasco and Oh, since the appellant is making essentially the same arguments to the rejection over Crow as modified by Brown, Bagnasco, Dias and OH.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CHANGQING LI whose telephone number is (571)272-2334. The examiner can normally be reached 9:00-5:00.
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, NIKKI H DEES can be reached at 571-270-3435. 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.
/CHANGQING LI/Primary Examiner, Art Unit 1791
Prosecution Insights