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 acknowledges the amendment made to the claims on 12/18/2025.
Claims 1 and 4-9 are pending in the applications. Claims 1 and 4-8 are previously presented. Claim 9 is withdrawn with traverse in response to the restriction requirement. Claims 2-3 and 10-20 remain cancelled. Claims 1 and 4-8 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Any objections and/or rejections that are made in the previous actions and are not repeated below, are hereby withdrawn.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 § 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 4-8 are rejected under 35 U.S.C. 103 as being unpatentable over Johnson US Patent Application Publication No. 2020/0352202 A1 (hereinafter referred to as Johnson) in view of Bego EP3603407A1 (cited in IDS, hereinafter referred to as Bego), Bayarri, “Viscoelasticity and texture of spreadable cheeses with different fat contents at refrigeration and room temperatures”, J. Dairy Sci. 2012, 95(12), pages 6926-6936 (hereinafter referred to as Bayarri) and Martikainen US Patent Application Publication No. 2016/0120198 A1 (hereinafter referred to as Martikainen).
Regarding claim 1, Johnson teaches a vegetable cheese (e.g., a plant-based fermented base composition that can be used as a spreadable “cheese” ([0056; 00112-0113; 0008]) comprising: crushed nuts such as almond puree (e.g., almond paste or almond butter, for example, raw roasted almond butter ([0010; 0067]), which reads on the limitation about the crushed nut puree without fractionation), at least a starch source (e.g., plantain flour, tapioca starch, corn starch, cassava powder, etc. [0009]), lactic ferments ([0083; 0037]) and 30-99% water ([0071]). Johnson teaches that the vegetable cheese comprises a protein that is not a soy protein (0011) thus reading on the limitation that the vegetable food product does not contain soybeans.
Further, Johnson does not discuss adding a vegetable fat to the vegetable cheese, which is interpreted to read on the limitation about “up to 20% of at least one added vegetable fat”, since the limitation encompasses no added vegetable fat.
Regarding the limitation that the vegetable cheese does not contain an added food additive as governed by EC No. 1333/2008: although Johnson teaches agar, pectin, xanthan gum, guar gum and locust ben gum ([0009]), they are not required since they are in alternative form with a starch source as recited above; furthermore, although Johnson discloses an additional components such as emulsifier, additive, coloring, minerals ([0097-0098]), each of them is optional. As such, Johnson reads on the limitation that the vegetable cheese does not contain the added additive as governed by EC No. 1333/2008.
Johnson does not teach that the vegetable cheese contains refining ferments or is refined such that the vegetable cheese is a soft-ripened cheese with white and homogenous flowered crust.
In the same field of endeavor, Bego teaches a non-dairy cheese obtained by subjecting a nut milk for example almond milk to a fermentation ([0013]). Further Bego teaches that the ferments used for fermentation of the nut milk comprises lactic ferment and a microorganism selected from the group consisting of Penicillium Candidum and Geotrichum candidum, in which Penicillium Candidum or Geotrichum candidum are molds responsible for the formation of white mold / bloomy rind on the surface of a soft cheese paste ([0031; 0041; 0051]).
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 Johnson by incorporating Penicillium Candidum and/or Geotrichum candidum in the lactic ferments of Johnson so as to make a vegetable cheese having white mold / bloomy rind thereon. 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 it is suitable to include Penicillium Candidum and/or Geotrichum candidum in the ferment to make a fermented nut (e.g., almond) cheese having white mold / bloomy rind thereon.
Penicillium Candidum and/or Geotrichum reads on refining ferments. Mixing the nut milk with a mixture of lactic ferments and refining ferments will necessarily result in a lactic fermented and refined cheese. White mold / bloomy rind reads on the limitation about soft-ripened, and white, flowered crust. Further, where Johnson teaches mixing the ferments with a slurry and a homogenization step is performed during or after the fermentation (0013; 0121), it logically follows that the white mold/bloomy rind formed on the surface of the cheese is homogeneous.
Johnson does not teach the Young’s modulus for the fermented base composition that is used as a spreadable composition. What Johnson teaches is that the spreadable composition comprises a higher amount of solids than a spoonable composition ([0056]), suggesting that the higher solid content the fermented base composition has, the firmer the fermented base composition is. Johnson further teaches that the fermented base composition comprises 30-99% water ([0071]). Young’s modulus measures the firmness, stiffness of a substance, or the resistance of the substance to deformation.
Bayarri teaches that for a spreadable cheese, a negative relationship usually exists between firmness and spreadability, e.g., the higher firmness the cheese has, the less spreadable the cheese is (page 6932-6933, under “Mechanical Characteristics”).
Martikainen teaches that how soft or hard a cheese can be is a parameter of the moisture content of the cheese, e.g., the more water a cheese has, the softer the cheese is (0039-0043).
Johnson, Bayarri and Martikainen are all directed to cheese-related 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 manipulated the firmness of the vegetable cheese through varying the content of the water (note that Johnson teaches 30-99% water) so as to ensure the vegetable cheese has a desired spreadability. In other words, before the effective filling date of the claimed invention, prior art has recognized that the spreadability of a cheese product relates to the firmness of the cheese product and the firmness of the cheese product can be modulated through varying the moisture content present in the cheese product, therefore, the skilled person would have been motivated to vary the moisture content to obtain a cheese product the spreadability of which is satisfactory. As such, the Young’s modulus value as recited in claim 1 is merely an obvious variant of the prior art.
Regarding claims 4-7, Johnson teaches that the vegetable cheese comprises about 1-40 w% crushed nut puree (0064-0067), no salt or about 0.01-10% salt as an enhancer (0105 and 0097); 0.001-1 w% lactic ferments (0083 and 0089), 0-15% vegetable protein concentrate or isolate (0091 and 0099); about 0.1-5 w% starch combined with a dietary fiber(0073-0074); about 0.01-10% sugar (0078 and Table 1); and 30-99 w% water (0071). 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, Johnson does not discuss adding transglutaminase to the vegetable cheese, which is interpreted to read on the limitation about “up to 3% transglutaminase”, since the limitation encompasses no transglutaminase.
Further regarding the limitation about 0.01-5% the combination of lactic ferments and refining ferments as recited in claims 4-6, Johnson teaches 0.001-1 w% lactic ferments (0083 and 0089); further, Bego as recited above teaches that the refining ferments are responsible for the formation of white mold / bloomy rind on the surface of a soft cheese, 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 manipulated the amount of the refining ferments in the cheese so as to ensure they could produce desired amount of white mold without compromising the flavor of the cheese.
Johnson is silent regarding the limitation about the particle size of the almond puree.
Bego teaches that almond for making non-dairy cheese should be ground to a mean particle size smaller than 30 micron before combing with water (0069).
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 Johnson by grinding the almond to a mean particle size smaller than 30 micron before forming an almond butter with reasonable expectation of success, for the reason that prior art has established that such a size for almond is suitable for forming a non-dairy cheese.
Regarding claim 8, Johnson teaches the invention as described above in connection with claim 1, including the product has a dry matter content of 27 w% (corresponding to water comprising 73 wt.% of the product; [0071]); 0-15% vegetable protein concentrate or isolate (0091 and 0099); about 0.1-5 w% starch combined with a dietary fiber(0073-0074); about 0.01-10% sugar (0078 and Table 1); and about 1-40 w% crushed nut puree (0064-0067).
Further, an almond puree is known to contain about 10% protein, 35% sugar, 5% fiber, and 28% fat. Therefore, Johnson teaches a vegetable food product the proportions of dry exact, protein, carbohydrate, lipids and fibers of which overlaps with, falls within or encompasses those ranged 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).
Response to Arguments
Applicant's arguments filed 12/18/2025 have been fully considered but they are not persuasive.
Applicant argues on page 3-4 of the Remarks that since para. [0003] of the printed publication of the present application states that the objective of the claimed invention is to develop a vegetable product that is similar to Camembert or Brie cheese, the claimed cheese is a non-dairy cheese that has a rind which is not possible to spread thus different from the spreadable cheese as disclosed by Johnson.
The argument is considered but found lacks ground. Nowhere in the instant specification suggests that the vegetable cheese as claimed is not spreadable. Nor does the instant claim include a negative limitation that the vegetable cheese as claimed is not spreadable. Further, applicant is noted that a Camembert cheese or a Brie cheese is actually spreadable. See Ahmed WO 91/03165 A1, which teaches that Brie cheese is very spreadable because it is a softer cheese (page 13, bottom para.), and Barch US Patent No. 2,871,127 teaches that Camembert cheese is spreadable because it is a soft cheese (column 1, line 37-38). As such, if the cheese as claimed is really similar to a Camembert cheese or a Brie cheese as applied has asserted, it is more likely it is spreadable than un-spreadable. Further, applicant’s attention is drawn to instant claims 4-6, which recite that the vegetable cheese contain as much as 85% water, suggesting that a very soft cheese is encompassed by the instant claims.
Applicant argues on page 4 of the Remarks that Bayarri confirms that cream cheese or spreadable cheese have a very different texture from hard and semisoft cheese because the former does not fracture, but the claimed cheese fractures and breaks instead of forming a uniform and continuous film like a spread.
Applicant’s argument is considered but found unpersuasive. Applicant is arguing a feature (e.g., the cheese fractures and breaks) that is not claimed . Nor does the assertion made by the applicant have support in the disclosure as originally filed. There is no evidence showing that the cheese as claimed is a semi-soft cheese. Rather, claims 4-6 recite that the cheese as claimed contains as much as 85% water, which no doubt includes a soft cheese, or soft imitation cheese. Further, there is no evidence or support showing that the cheese as claimed fractures and breaks instead of forming a uniform and continuous film like a spread.
Applicant argues on pages 4-6 of the Remarks that Young’s modulus refers to the application of small deformation that does not result in a significant flow of the materials, and the such a small deformation measurement does not give any information on the ability of the material to spread or not.
The argument is considered but found unpersuasive because Young’s modulus is known to measure the firmness or stiffness of a substance. To this end, Bayarri teaches that for a spreadable cheese, a negative relationship usually exists between firmness and spreadability, (page 6932-6933, under “Mechanical Characteristics”), and Martikainen teaches that how soft or hard a cheese can be is a parameter of the moisture content of the cheese, e.g., the more water a cheese has, the softer the cheese is (0039-0043). Thus taken the prior art in its entirety, the known wisdom before the effective filling date of the claimed invention is that the spreadability of a cheese is a parameter of its firmness (e.g., the firmer the cheese is, the less spreadable the cheese is), and the firmness of a cheese can be modulated through varying the amount of moisture therein (e.g., the more water a cheese has, the softer the cheese is). 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 manipulated the firmness of the vegetable cheese through varying the content of the water (note that Johnson teaches 30-99% water) so as to ensure the vegetable cheese has a desired spreadability.
Unfortunately, applicant has not been able to shown any new result associated with the Young’s modulus value as recited in claim 1.
For the reason set forth above, applicant’s argument on page 6 of the Remarks that the combination of Johnson and Bayarri is not relevant to describe the mechanical property of vegetable soft ripened cheeses is not persuasive.
Applicant assert on page 6-7 of the Remarks that the claimed range of Young’s modulus value concerns large deformation domain and not small deformation domain.
This assertion t is considered but found irrelevant to the rejection because regardless of large or small deformation domain, Young’s modulus is known to measure the firmness of a product (see instant specification page 24, line 22-23). Further, the assertion is found to lack evidentiary support.
Applicant argues on page 7 of the Remarks that the disclosure of Bayarri is the opposite of the examiner’s assertion that negative relationship exists between firmness and spreadability. In particular, applicant argues that Table 5 of Bayarri shows that a positive correlation is clearly shown between firmness spreadability.
The argument is considered. Applicant has misinterpreted Bayarri. Bayarri clearly teaches that negative relationships exists between firmness and spreadability values for a spreadable cheese, although there is some variation (page 6933, left hand column, line 1-5). The negative relationship is reasonably for a specific composition, not across the compositions. Applicant is reminded that Table 5 based on which the Fig 1 and Fig, 2 are drawn by the applicant on page 7 of the Remarks is about the firmness and spreadability values of 8 different compositions (e.g., AR, AL, BR, BL, CR, CL, DR and DL). It is unclear what applicant is trying to convey by comparing the firmness and spreadability of different products.
Applicant argues on pages 7-9 of the Remarks that the teaching learned from dairy cheese cannot be applied to vegetable cheese, since they have different ingredients.
The argument is considered but found unpersuasive. The knowledge that the spreadability of a dairy cheese product relates to the firmness of the cheese product and the firmness of a dairy cheese product can be modulated through varying the moisture content present in the cheese product can be reasonably extrapolated to vegetable cheese, since it appears that it is the moisture content or dry matter content that is at play, not what the dry contents are. On the other hand, applicant has not shown otherwise by evidence.
Applicant argues on page 9 of the Remarks that a skilled artisan would not arrive at the claimed invention in view of the cited reference. In particular, applicant argues that Martikainen suggests using soy protein which is contrary to the claimed invention.
The argument is considered but found unpersuasive. Applicant is reminded that Martikainen is a secondary reference cited for teaching that how soft or hard a cheese can be is a parameter of the moisture content of the cheese, not about soy protein or lack thereof. For the record, primary reference Johnson teaches that the vegetable cheese comprises a protein that is not a soy protein (0011).
Applicant argues on page 9 of the Remarks that “Starting with a spread and gradually reducing its water content, a product that is increasingly firm but also increasingly brittle (a bit like butter that comes out of the freezer and becomes hard and brittle) will be obtained. A spread is characterized by a very limited linear range, beyond which it enters a plastic range (this corresponds to the uniform spread disclosed by Bayarri). The more the water content is reduced, the more the linear range will shrink, so as soon as the product is mechanically stressed, it will behave in a "hard and brittle" manner (like a spread taken out of the freezer, for example). However, this spread with less water resembles neither the original spread nor the object of the claimed invention since it has neither the spreadability of the original spread nor the firm but deformable (as opposed to brittle) character of a Camembert or Brie. It is therefore not possible to reduce the water content of a spread-type product and regain the rheology of a Camembert”.
The argument is considered but found unpersuasive because it is making unground assumption. Applicant is reminded that claims 4-6 actually recites a water content that is as much as 85%, and Johnson teaches a water content of 30-99% water. Why does applicant have the opinion that one has to reduce the water content of the spreadable cheese of Johnson?
For the reasons set forth above, claims 1 and 4-8 are continuously rejected by Johnson in view of Bego, Bayarri and Martikainen.
Conclusion
Pertinent art
The prior art made of record and not relied upon is considered pertinent to applicant’s disclosure
-Ahmed WO 91/03165 A1, which teaches that Brie cheese is very spreadable because it is a softer cheese (page 13, bottom para.).
-Barch US Patent No. 2,871,127 teaches that Camembert cheese is spreadable because it is a soft cheese (column 1, line 37-38).
THIS ACTION IS MADE FINAL. 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