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 the claims on 09/02/2025.
Claims 1-7 and 10-20 are pending in the application. Claims 1, 2, 3, 4, 5, 12, 13, 14, 16 and 17 are currently amended. Claims 8-9 remain cancelled. Claim 21 is newly cancelled. Claim 11 is withdrawn with traverse in response to the restriction requirement. Rest of claims are previously presented. Claims 1-7, 10 and 12-20 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Any objections and/or rejections that are made in the previous actions and are not repeated below, are hereby withdrawn.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/process/file/efs/guidance/eTD-info-I.jsp.
Claims 1-3, 5, 12 and 15-16 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 6 and 18 of copending Application No. 17/390,336 in view of Mahler CA3124278 A1 (hereinafter referred to as Mahler) and Monica, How to make vegan cheese [Online], published May 16, 2020, [retrieved on 2023-12-22]. Retrieved from the Internet: <URL: https://thehiddenveggies.com/how-to-make-vegan-cheese-provolone/ > (hereinafter referred to as Monica). Claims 6 and 18 of ‘336 encompass the subject matter of instant claims 1-3, 5, 12 and 15-16 including crushed almonds, vegetable fat, starch, dietary fiber, acidifying ingredient, water and the amount of saturated fatty acid (the almond and vegetable oil are known to contain marginal amount of saturated fatty acid) except the median particle size and potato starch, which is taught by Mahler and Monica. In particular, Mahler teaches that the cream cheese-like vegan product that comprises almond should have a median particle size of less than 100 microns, preferably between 10-40 microns which comes as close as possible to the particle size distribution of a traditional cream-cheese, such that the mouthfeel, texture and color of the product resemble a traditional cream-cheese; and Monica teaches that the starch source for a vegan cheese can be from potato. 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 ‘336 to include the size for the benefit in mouthfeel and color, and including potato starch since prior art has established that potato starch is an art-recognized starch source for making a plant-based cheese.
This is a provisional nonstatutory double patenting rejection.
Claims 1-3, 5, 12 and 15-16 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of copending Application No. 17/390,477 in view of Mahler CA3124278 A1 (hereinafter referred to as Mahler) and Monica, How to make vegan cheese [Online], published May 16, 2020, [retrieved on 2023-12-22]. Retrieved from the Internet: <URL: https://thehiddenveggies.com/how-to-make-vegan-cheese-provolone/ > (hereinafter referred to as Monica). Claim 1 of ‘477 encompass the subject matter of claims 1-3, 5, 12 and 15-16 including crushed nuts, vegetable fat, starch, dietary fiber, acidifying ingredient, water and the amount of saturated fatty acid (the almond and vegetable oil are known to contain marginal amount of saturated fatty acid) except the median particle size and potato starch, which is taught by Mahler and Monica. Mahler teaches that the cream cheese-like vegan product that comprises almond should have a median particle size of less than 100 microns, preferably between 10-40 microns which comes as close as possible to the particle size distribution of a traditional cream-cheese, such that the mouthfeel, texture and color of the product resemble a traditional cream-cheese, and Monica teaches that the starch source for a vegan cheese can be from potato. 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 ‘477 to include the size for the benefit in mouthfeel and color, and including potato starch since prior art has established that potato starch is an art-recognized starch source for making a plant-based cheese.
This is a provisional nonstatutory double patenting rejection.
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, 4-7, 10, 17 and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Philipp, Easy vegan cream cheese [Online], published July 13, 2020, [retrieved on 2023-12-22]. Retrieved from the Internet: <URL: https://www.exceedinglyvegan.com/vegan-recipes/dips-sauces-cheese/easy-vegan-cream-cheese > (hereinafter referred to as Philipp) in view of Johnson US Patent Application Publication No. 2020/0352202 A1 (hereinafter referred to as Johnson), Mahler CA3124278 A1 (hereinafter referred to as Mahler) and Monica, How to make vegan cheese [Online], published May 16, 2020, [retrieved on 2023-12-22]. Retrieved from the Internet: <URL: https://thehiddenveggies.com/how-to-make-vegan-cheese-provolone/ > (hereinafter referred to as Monica).
Regarding claims 1, 5-7 and 10, Philipp teaches a vegetable food product (e.g., vegan cream cheese that is spreadable and white-ish in color; see title and all the pictures) consisting of crushed nuts in the form a puree (e.g., blanched raw almonds or ground almond is blended in a blender that comprises water thus an crushed almond puree is necessarily obtained, see “Ingredients” and “Method”); at least one vegetable fat (e.g., olive oil, see “Ingredients”); at least one source of starch that is not a modified starch (e.g., corn starch, see “Ingredients”); a natural acidifying ingredient that is citrus-based (e.g., lemon juice, see “Ingredients”), water (see “Ingredients”); a flavor (e.g., nutritional yeast, (see “Ingredients”); and salt (see “Ingredients”); wherein the vegetable food product is not fermented (see “Method”); and wherein the vegetable food product contains no added food additives listed in EC No. 1333/2008 besides those recited above (see “Ingredients”).
Philipp is silent regarding the spreadable vegan cream cheese comprising at least a source of vegetable dietary fiber.
Johnson teaches a vegetable food product (e.g., a plant-based fermented base composition that can be used as a spreadable cheese, [0008]; [0056]; [00112]) comprising inter alia: crushed nuts such as almond puree (e.g., almond paste or almond butter, [0067]), starch ( [0074]), vegetable dietary fibers as a thickener (e.g., ground flaxseed, ground chia seeds and chicory root extract in [0074]; chicory root extract is known to be rich in inulin which is known to be a non-texturizing soluble fiber), a natural acidifying ingredient (e.g., acids from lemon juice [0102]-[0103]), and water [0071].
Both Philipp and Johnson are directed to spreadable cheese substitutes. 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 Philipp by including a dietary fiber such as chicory root extract in the spreadable vegan cream cheese as disclosed by Phillips with reasonable expectation of success, for the reason that prior art has established that a dietary fiber such as chicory root extract can function to thicken a spreadable cheese substitute.
Regarding the amount of crushed nuts in the form of puree, Philipp teaches that 75 g blanched almonds, 150 ml water, 2 1/2 tbsp lemon juice, 1 tbsp nutritional yeast, 1 tbsp olive oil, 1 tbsp corn starch, and ½ tsp table salt (e.g., salt) are blended in a blender (“Ingredients” and “Methods”). As such, Philipp suggests a proportion of almonds at about 25% (sample calculation: 150 ml water is about 150 g, 2 1/2 tbsp lemon juices is about 37 g which contains about 90% water, 1 tbsp nutritional yeast is about 11 g, 1 tbsp olive oil is about 14 g, 1 tbsp corn starch is about 7.5 g, and ½ tsp table salt is about 3 g, thus the total weight is ~298 g; percent of almond: 75/298 x100% =25%). This amount, although not very close to the range as recited in the claim, is very close to the upper bound 19% as claimed that one skilled in the art would have expected them to have the same properties, given that both Philipp and the claimed invention are directed to almond-based cream cheese. 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).
Further, Johnson teaches the spreadable cheese product contains about 1-40 w% crushed almond puree ([0064-0067]).
It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have incorporated the amount of almond as disclosed by Johnson because prior art has established that a spreadable cheese can have 1-40% almond puree. 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).
On the limitation about the amount of dietary fiber in the vegan cream cheese, Johnson teaches the spreadable cheese product contains about 0.1-5 w% starch combined with a dietary fiber as the thickener [0073 ]-[0074].
It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have incorporated the amount fiber as disclosed by Johnson because prior art has established that a spreadable cheese can have 0.1-5% fiber plus starch for thickening purpose.
Given that 14 g olive oil is included in ~300 gram of vegan cream cheese, the amount of saturated fatty acid as contributed by olive oil is very marginal (e.g., assuming olive oil contains ~15% saturated fatty acid, then 14 g oil only contains 2 gram of saturated fatty acid); further almond is known to contain only trace amount of saturated fat, as such, Philipp reads on the limitation that the vegetable food product contains up to 8% of saturated fatty acid.
Philipp as modified by Johnson is silent regarding that the vegetable food product has a median particle size D50 of less than 50 microns. What Philipp teaches is that all the ingredients including almond, water and oil are heated till the mixture changes consistency and turns into a thickish paste (see “Method”).
In the same field of endeavor, Mahler teaches a cream cheese-like vegan food product for use as a spread comprising, inter alia, almond, acid, water and vegetable fat such as sunflower oil, rapeseed oil, olive oil, etc. (page 1, line 3-8; page 5, line 14-34; page 8, line 31-32; page 25, line 9-11 and 21-23; page 29,line 28); further Mahler teaches that the cream cheese-like vegan product that comprises almond should have a median particle size of less than 100 microns, preferably between 10-40 microns which comes as close as possible to the particle size distribution of a traditional cream-cheese, such that the mouthfeel, texture and color of the product (e.g., naturally white) resemble a traditional cream cheese; Mahler teaches that such a particle size distribution could be achieved through a heating step and a mechanical processing step (e.g., comminution and homogenization) of the raw materials (page 10- page 11; page 18, line 13-17).
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 Philipp by subjecting the raw materials of the vegetable food product of Philipp to a heating step and a mechanical processing step (e.g., comminution and homogenization) to obtain a final product the median particle size which is 10-40 microns. Doing so would have resulted in a vegetable product the mouthfeel, texture and color of which resemble a traditional cream cheese. 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 adjusting the median particle size of the raw materials of the cheese-like product that comprises almond to 10-40 micron will improve its mouthfeel, texture and color.
Philipp teaches that the vegan cream cheese comprises corn starch thus being silent regarding potato starch.
In the same field of endeavor, Monica teaches a vegan cheese comprises coconut or a nut such as cashew (“Frequently asked questions”), water, a thickener (e.g., agar agar or carrageenan), lemon juice, nutritional yeast, salt and a starch (e.g., tapioca starch) (“Ingredients and substitution”); further, Monica discloses that starch such as manioc starch (e.g., tapioca starch), corn starch and potato starch will let the vegan cheese melt like real cheese (“Ingredients and substitution”).
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 Philipp by substituting potato starch for corn starch with reasonable expectation of success, for the reason that prior art has recognized that they are functional equivalents suitable for use in a vegan cheese. See MPEP 2144.06 II, substituting equivalents know for the same purpose is prima facie obvious.
Regarding the amount of potato starch in the vegan cream cheese, Philipp teaches that 75 g blanched almonds, 150 ml water, 2 1/2 tbsp lemon juice, 1 tbsp nutritional yeast, 1 tbsp olive oil, 1 tbsp corn starch, and ½ tsp table salt (e.g., salt) are blended in a blender (“Ingredients” and “Methods”), and Philipp as modified by Monica replaces the corn starch with potato starch, As such, prior art teaches a proportion of potato starch of about ~4% (calculation: 150 ml water is about 150 g, 2 1/2 tbsp lemon juices is about 37 g which contains about 90% water, 1 tbsp nutritional yeast is about 11 g, 1 tbsp olive oil is about 14 g, 1 tbsp potato starch is about 12 g, and ½ tsp table salt is about 3 g, thus the total weight is ~302 g and the percent of potato starch: 12/302 x100% = ~4%). Further, Johnson teaches the spreadable cheese product contains about 0.1-5 w% starch combined with a dietary fiber as the thickener [0073 ]-[0074].
Regarding the median particle size of the crushed nut puree, where the claim is directed to a final vegan cheese or vegetable food product comprising crushed nut, and where the median particle size only describes the feature of the crushed nut as a raw material to make the vegan cheese, the examiner submits that the vegan cheese as disclosed by Philipp as modified by Johnson, Mahler and Monica is materially indistinguishable from the claimed composition, since the median particle size of the final product is 10-40 microns. In other words, one of ordinary skill in the art would not be able to ascertain the particle size of the crushed nut in the final composition where the raw materials has been micronized by a mechanical process.
Regarding claims 4, 17 and 20, Philipp as modified by Monica teaches that 75 g blanched almonds, 150 ml water, 2 1/2 tbsp lemon juices, 1 tbsp nutritional yeast,1 tbsp olive oil, 1 tbsp potato starch, and ½ tsp table salt are blended in a blender (“Ingredients” and “Methods”). Further, Philipp as modified by Johnson introduces a fiber the amount of which is less than 5%. As such, prior art suggests a proportion of water about ~60% (sample calculation: 150 ml water is about 150 g, 2 1/2 tbsp lemon juices is about 37 g which contains about 90% water, 1 tbsp nutritional yeast is about 11 g, 1 tbsp olive oil is about 14 g, 1 tbsp potato starch is about 12 g, and ½ tsp table salt is about 3 g, thus the total weight is ~302 g; and percent of water: (150 + 37x90%)/302 x100% = 61%); thus, the dry matter of the spreadable vegan cheese is ~40%. Further the picture shows that the product is white -ish. Additionally, Mahler teaches that subjecting the almond to a heating step and a mechanical processing step will result in a product that has naturally white color.
Claims 2, 3, 12-16 and 18-19 are rejected under 35 U.S.C. 103 as being unpatentable over Philipp as modified by Johnson, Mahler and Monica as applied to claim 1 above, and further in view of Marcello US Patent No. 6,951,662 (hereinafter referred to as Marcello).
Regarding claims 2, 3, 12, 15-16 and 18-19, modified Philipp teaches that 75 g blanched almonds, 150 ml water, 2 1/2 tbsp lemon juice, 1 tbsp nutritional yeast, 1 tbsp olive oil, 1 tbsp potato starch, and ½ tsp table salt (e.g., salt) are blended in a blender (“Ingredients” and “Methods”). As such, modified Philipp suggests a proportion of almonds at about 25%, fat about 5%, salt about 1%, potato starch about 4%, lemon juice about 12% and water about 61% (sample calculation: 150 ml water is about 150 g, 2 1/2 tbsp lemon juices is about 37 g which contains about 90% water, 1 tbsp nutritional yeast is about 11 g, 1 tbsp olive oil is about 14 g, 1 tbsp potato starch is about 12 g, and ½ tsp table salt is about 3 g, thus the total weight is ~302 g; percent of almond: 75/302 x100% =~25%; percent of water: (150 + 37 x90%)/302 x100% =~61%; percent of oil/fat: 14/302 x100% =5%; percent of potato starch: 12/302 x100% =~4%; percent salt: 3/302 x100% = ~1%; percent of nutritional yeast flavor: 11/302 x100% = ~4%; and percent of acidifier: 37/302 x100% = ~12%). Further Johnson teaches an almond content of 1-40% and a fiber content of 0.1-5%.
Therefore, modified Philipp teaches an amount of almond, fat, starch, flavor, water, fiber and salt that falls within or overlaps with the ranges as recited in claims 2-3 and 12. 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, olive oil or almond is known to contain only trace amount of saturated fat (see para. 33 above); as such, Philipp reads on the limitation that the vegetable food product contains up to 8% or 3% of saturated fatty acid.
Additionally, Johnson teaches the spreadable cheese product contains: about 1-40 w% crushed almond puree ([0064-0067]), about 0.1-5 w% starch combined with a dietary fiber [0073 ]-[0074]; about 0.01-1 wt.% lemon juice [0102]-[0103]), and 73 w% water [0071].
It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have incorporated the amount of acidifier as disclosed by Johnson because prior art has established that a spreadable cheese can have 0.11-2% lemon juice as an acidifier. 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, Marcello in the same field of endeavor as Philipp teaches a vegetable cheese or cheese substitute comprises crushed nuts such as almond, an oil such as olive oil, salt, an acidifier such as lemon juice (column 5, line 3-5; column 2, line 7-9, 32-33 and 57; column 3, line 24-28); further, Marcello teaches that the amount of acidifier determines the consistency of the crushed product (consistency means viscosity or firmness of the product, for example, when acid is added, a reaction takes place which leads to an altered viscosity, that is to say to a more solid substance) (column 2, line 14-18 and 66-67), and the ratio of acid to the sum of crushed nut, water, salt and oil is about 2:100 to 20:100 (column 2, line 12; 61-63).
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 amount of the lemon juice such that the obtained spreadable vegan cream cheese has desired viscosity or firmness. As such the amount of lemon juice as recited in the claims are merely obvious variant of the prior art.
Further, where prior art teaches a lemon juice, one of ordinary skill in the art would have been motivated to choose a lemon juice of any concentration to acidify the product (a concentrated lemon juice is known to contain more acid than a normal one), absent a showing the criticality associated with a concentrated lemon juice.
Regarding claims 13-14, Philipp as modified by Monia teaches that 75 g blanched almonds, 150 ml water, 2 1/2 tbsp lemon juices, 1 tbsp nutritional yeast,1 tbsp olive oil, 1 tbsp potato starch, and ½ tsp table salt are blended in a blender (“Ingredients” and “Methods”). As such, prior art suggests a proportion of water about 60% (sample calculation: 150 ml water is about 150 g, 2 1/2 tbsp lemon juices is about 37 g which contains about 90% water, 1 tbsp nutritional yeast is about 11 g,1 tbsp olive oil is about 14 g, 1 tbsp potato starch is about 12 g, and ½ tsp table salt is about 3 g, thus the total weight is ~302 g; and percent of water: (150 + 37x90%)/302 x100% =61%); thus, the dry matter of the spreadable vegan cheese is about 40%. Further the picture shows that the product is white -ish. Additionally, Mahler teaches that subjecting the almond to a heating step and a mechanical processing step will result in a product that has naturally white color.
Response to Declaration
The declaration under 37 CFR 1.132 filed 09/02/2025 is insufficient to overcome the rejection of pending claims based upon the references as set forth in the last Office action.
The examiner notes that declarant has compared the flow threshold property of cream cheese analogues made with three different starches (e.g., potato starch, corn starch and tapioca starch) across the range of 3-10% and concludes that “tapioca starch and corn starch do not possess, at 3 to 10%, the same functional equivalents suitable for use in vegan cheese as described in the claimed invention as potato starch”. (page 7, 2nd para.).
The examiner disagrees. Applicant appears to have misinterpreted the meaning of “functional equivalents”. To this end, Monica as cited clearly discloses that only tapioca starch (like corn starch or potato starch) will let your cheese melt and stretch similarly to real cheese, suggesting that the three starches are functional equivalent in the capacity of meltability and stretchability in a non-dairy cheese. Unfortunately, applicant’s experiment has not shown that three starches are not functional equivalent in delivering meltability or stretchability to a cream cheese analogue. On the other hand, two things being functional equivalents does not mean they have to have the same value in that function. An analogy is sucrose and fructose are functional equivalents in sweetening a food or a beverage but they do not necessarily have the same degree of sweetness.
On the other hand, although the showing has demonstrated that potato starch might perform better than corn starch or tapioca starch average texture variability as measured and calculated by flow threshold and the standard deviation (e.g., Table 3 of the declaration), 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, prior art teaches including potato starch thus the advantage in flowing is within the teaching of prior art.
Additionally, the examiner notes that applicant does not really shed light on which part of the showing is unexpected or surprising. Is one of ordinary skill in the art expecting that three starches have exactly identical flowing property?
Further, the examiner submits that the showing is not commensurate in scope with the instant claim, for example, the showing is for a fiber (e.g., inulin) concentration of 2.5%. There is no adequate basis to ascertain that a food product with a higher fiber content such as 8% as claim 1 and a different dietary fiber still behaves the same in flowing property. Note that the amount of fiber is known to affect the viscosity or flowability of a food.
Additional comments on the experimental showing:
First, on page 5 first para. of the declaration applicant asserts that “Regarding Tapioca starch 7% and 10% trials, the texture was too firm at the end of step C to proceed the homogenization (step D of Table 2) and thus to obtain the final product, which suggests that with 7% or 10% tapioca starch, a vegetable food product cannot be successfully obtained. However, such a result conflicts with the disclosure as originally filed. In particular, page 7, line 23- page 8, line 5 combined with page 13, line 7-10 of the instant specification recites that the vegetable food product could contain 0.5-20% tapioca starch.
Second, it is not clear what D12, D30 and D64 represent in Fig. 1. It is unclear what J12, J30 and J64 as recited in bottom para. of page 5 means either. Note that Table 2 mentions D45, D30 and D64. Is D45 a typo? Applicant is invited to clarify. Further, it is very puzzling how these D# or J# are chosen such that they are representative of the whole D or J ranges.
Third, applicant asserts that corn starch or tapioca starch has higher average texture variability than that potato starch. To this end, it appears that the average texture variability is measured by coefficient of variation, which is calculated by dividing standard deviation by average flow threshold of different measurements. However, the examiner questions that whether such a coefficient of variation has any statistical significance, given that there are only three data points, let alone it is not clear whether the three D values could represent the whole range of D value.
Fourth, it is unclear why the flow threshold value as presented in the declaration is much higher than in the spec. for example, where Table 5 of the instant spec. shows a flow threshold value of 2 or 1.2 kpa for the cream cheese of example 1 or example 4, the flow threshold for a sample in Fig. 1 of the declaration is 1000-10000 kpa. Is there a typo in Fig.1?
Fifth, it is noted that in Fig. 1 of the declaration, at concentration of 3%, the average flow thresholds of potato starch and corn starch are actually similar (e.g., the former has a value of 1009 and the latter has a value of 1172), suggesting that the former is only marginally better than the latter. More importantly, the flow threshold for tapioca starch at a concentration of 3% and 4.5% are actually a lot lower than that of potato starch, suggesting tapioca starch performs better in the flowability than potato starch at those concentrations, and one of ordinary skill in the art would favor tapioca starch over potato starch at 3-4.5%, a concentration that falls within the range as recited in claim 1.
For the reasons set forth above, the examiner submits that the showing is insufficient to overcome the rejection of pending claims based upon the references as set forth in the last Office action.
Response to Arguments
Applicant's arguments filed 09/02/2025 have been fully considered but they are not persuasive.
It is noted that the main arguments made in the Remarks is about that the declaration filed concurrently has shown that potato starch does not have the same properties as corn starch or tapioca starch. Applicant is invited to refer to “Response to Declaration” above for the examiner’s response.
Further regarding the pending ODP rejection of pending claims over the claims of 17/390,336 and 17/390,477, the examiner notes that although applicant traverses the rejection, no actual argument is made. Therefore, the rejection is maintained.
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