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 .
Continued examination under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e) was filed after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.114 has been timely paid, the finality of the previous Office Action has been withdrawn pursuant to 37 CFR 1.114. Applicant’s submission filed on 10/23/2025 has been entered.
Claim status
The examiner acknowledged the amendment made to the claims on 10/23/2025.
Claims 1 and 3-21 are pending in the application. Claims 1 and 21 are currently amended. Claim 2 remains cancelled. Claims 3-20 are previously presented. Claims 1 and 3-21 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Any objections and/or rejections that are made in the previous actions and are not repeated below, are hereby withdrawn.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 the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1 and 3-20 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claim 1 as amended recites a base composition comprising a milk and a cream. The examiner does not find the support for such a limitation. It is noted that para. [0007] and [0026-0027] of the instant specification recites that the base composition comprises a milk, a modified milk, a plant-based milk alternative, or a combination thereof. Further, Example 1 of the instant specification recites a base composition that comprises a skim milk and a cream. However, those do not provide sufficient support for a base composition that comprises a generic milk and cream. The disclosure does support a base composition that comprises skim milk and cream as recited in claim 21 though.
Claims 3-20 ultimately depend from claim 1 and therefore necessarily incorporate the written description deficiency therein.
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 1 and 3-21 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.
Claim 1 recites: (a) a base composition comprising a milk and a cream; and a phospholipid and about 5% to about 35% by weight of the base composition of fat comprising triglycerides other than phospholipid. It is unclear whether the phospholipid is part of the base composition judging from (a) (judging from the whole context of claim 1, it appears that phospholipid is part of the base composition). For the purpose of examination, (a) is interpreted to mean “a base composition comprising a milk, a cream and a phospholipid, wherein the base composition comprises about 5% to about 35% by weight of the base composition of fat comprising triglycerides other than phospholipid”. Appropriate correction is required.
Claims 3-21 ultimately depend from claim 1 and therefore necessarily incorporate the indefinite subject matter therein. 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 and 3-21 are rejected under 35 U.S.C. 103 as being unpatentable over USDA CID, “Cream, Eggnog, Half-and Half, and Sour Cream” [Online], published Jan. 18, 2002 [retrieved on 2025-10-31]. Retrieved from the Internet: <URL: https://www.ams.usda.gov/sites/default/files/media/CID%20Cream%2C%20Eggnog%2C%20Half-and-Half%2C%20and%20Sour%20Cream.pdf> (hereinafter referred to as USDA CID) in view of Niu CN104705418A (English translation relied upon for reference, hereinafter referred to as Niu).
Regarding claims 1, 3-8, 11 and 17, USDA CID teaches a base composition that comprises a milk and a cream (e.g., half-and-half, page 3, 5.2; note that half-and-half is known to be obtained by mixing milk and cream and is present in the form a cream, and milk is known to contain trace amount of phospholipids in the milk fat globule membrane); wherein the half-and-half contains 10.5-18% milk fat (page 3-4, 5.3), and wherein the base composition is pasteurized followed by homogenized page 3, 5.2).
USDA CID is silent regarding mixing the base composition (e.g., half-and-half) with a lipase and/or a combination of a lipase and a phospholipase.
Niu in the field of dairy products teaches a method of producing a dual enzyme-treated dairy product, the method comprising providing a dairy product having varying amount of fat (e.g., cream, low-fat milk, whole milk, cheese, ice-cream, milk shake, and creamer) (abstract; 0024; 0030; 0039), and treating the dairy product with a dual-enzyme system comprising a triglyceride lipase and a phospholipase in which the lipase performs enzymatic hydrolysis of milk fat and the phospholipase cleaves phospholipid to produce a lysophospholipid (abstract; 0060; Examples 1-6) to obtain a final product that has full-bodies taste, obvious aroma, enhanced creaminess and a long-lasting aroma (0022); wherein the dosage of the enzyme is 0.001-2% lipase and 0.0005-1% phospholipase (abstract; 0033; 0036; 0040), wherein the enzymatic hydrolysis is conducted at a temperature of 4-60 °C or preferably 30 °C (abstract; 0032; 0039 and Examples 1-6), wherein the hydrolysis is conducted for 5 min to 4 hours (abstract; 0034; 0041), and the wherein hydrolysis is followed by inactivating the enzymes by heat treatment (abstract).
Both USDA CID and Niu are directed to dairy products that comprise milk and/or cream, and where USDA CID teaches a dairy product that contains 10.5-18% milk fat, Niu teaches that treating a dairy product having varying amount of milk fat (for example, low-fat milk which contains as low as 1% milk fat, whole milk which contains 3.5% milk fat, and cream which contains 5-85% or narrowly 35-40% milk fat) with a dual-enzyme system will obtain a final product that has full-bodies taste, obvious aroma, enhanced creaminess and a long-lasting aroma. 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 modified USDA CID by subjecting the base composition (e.g., half-and-half) to the enzymatic hydrolysis as disclosed by Niu so as to obtain a final base composition or food product that has full-bodies taste, obvious aroma, enhanced creaminess and a long-lasting aroma.
The base composition (e.g., half-and-half) as disclosed by USDA CID is interpreted to read on the modified milk as recited in claim 3, since it is a formulation that derives from milk (see para. 0022 of the instant specification).
The amount of fat (e.g., milk fat) as disclosed by USDA CID falls within the range as recited in claims 1 and 4. The hydrolysis temperature and duration as disclosed by Niu overlaps with the ranges as recited in claims 6-7. 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).
Regarding claim 9, the examiner take official notice that before the effective filling date of the claimed invention, a flavored half-and-half such as French Vanilla half-and-half and Hazelnut half-and-half are well known. 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 added a flavorant to the enzyme-treated half-and-half for desired flavor.
Regarding claim 10, USDA teaches adding vitamin A to the base composition (page 4, 5.3.3). Vitamin A reads on the antioxidant as recited in claim 10.
Regarding claim 12, USDA CID does not recite adding an emulsifier or texturizing agents to the half-and-half thus reading claim 12.
Regarding claims 13 and 18, USDA CID as recited above teaches that the half-and-half contains 10.5-18% fat. Niu as recited above teaches that the enzymatic hydrolysis is conducted for as short as 5 min, and that the lipase hydrolysate accounts for 0.05-10% of the dairy product (0056). It thus reasonably follows that the enzyme-treated half-and-half has a fat content that falls with or overlaps with the ranges and concentration as recited in the claims 13 and 18.
Regarding claims 14 and 15, given that USDA CID as modified by Niu teaches essentially the same method as recited in claim 1, it logically follows that the resulting enzymes-treated base composition has a viscosity that falls within or overlaps with the ranges as recited in the claims. See In re Best. Note that claim 14 recites a very broad range with the upper endpoint being more 1000 times of the lower one. Further, Fig. 3B-3C of the instant specification show that a milk product having 10% and 15% fat has a viscosity value of ~200,000-400,000 cp and ~200,000-400,000 cp respectively after the lipase treatment. Therefore, enzyme-treated half-and-half having original 10.5-18% fat as disclosed by prior art will reasonably have a viscosity that falls within the ranges of claim 14-15.
Regarding claim 16, given that USDA CID as modified by Niu teaches essentially the same method as recited in claim 1, it logically follows that the resulting enzyme-treated half-and-half has the stability in the capacity of the phase separation as compared to a control. See In re Best.
Regarding claims 19-20, the examiner take official notice that before the effective filling date of the claimed invention, half and half is very commonly used in coffee to add richness and creaminess. 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 added the enzyme-treated half-and-half to a coffee for richness and creaminess.
Regarding claim 21, prior art is silent regarding what kind of milk (skim, low fat or whole milk) is mixed with cream to make the half-and-half, however, since skim, low fat and whole milk differ only in the amount of milk fat or cream, one would not be able to tell from the final product whether the milk source is skim or whole milk. In other words, a half-and-half with10.5-18% milk fat that is made from skim milk and another half-and-half with same amount of milk fat that is made from whole milk is materially indistinguishable. Therefore, claim 21 is met by prior art.
Response to Arguments
Applicant’s arguments filed 10/23/2025 with respect to claim 1 have been considered but are moot because they are moot over the new ground of rejection set forth in the instant office action.
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.
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/CHANGQING LI/Primary Examiner, Art Unit 1791