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 .
DETAILED ACTION
Status of Claims
Note: The amendment of September 15th 2025 has been considered.
Claim 1, 4, 5, 7, 14, 17 and 21-23 has been amended.
Claims 18-20 are cancelled.
Claims 1-17 and 21-24 are pending in the current application.
Claim 15 has been withdrawn from consideration.
Claims 1-14, 16, 17 and 21-24 are examined in the current application.
Any rejections not recited below have been withdrawn.
Claim Rejections - 35 USC § 112
In light of the amendments and clarifications filed on September 15th 2025, the rejection of claims 4 and 5 under 35 USC §112(a) and the rejections of claims 1-14, 16, 17 and 21-24 under 35 USC §112(b) have been withdrawn.
The text of those sections of Title 35 of the U.S. Code not included in this action can be found in a prior Office action.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35 of the U.S. Code not included in this action can be found in a prior Office action.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-14, 16, 17 and 21-24 are rejected under 35 U.S.C. 103 as being unpatentable over Falconnier et al. (EP 3375293 A1-Machine translated) in view of Holz-Schietinger et al. (US 2015/0305361 A1).
Regarding claims 1, 3-5, 7-12, 14, 16 and 21-24: Falconnier discloses a non-dairy cream product comprising puree nuts (e.g., almonds), rice flour, flavorings (e.g., salt), ferments, dietary fibers, water (i.e., cereal milk), vitamins, natural flavorants and extracts, wherein the vegetable fibers may be from added cereal powder (see Falconnier abstract; paragraphs [0013]-[0019]; claim 1), but fails to disclose vegetable oil and acidifier; However, Holz-Schietinger discloses using vegetable oils (i.e., oils liquid at room temperature, such as sunflower oil) and acidifiers (e.g., organic acids and/or lemon extract) in non-dairy dairy product replicas in order to a attain a products with desired texture, shelf life and flavor (see Holz-Schietinger table 1). Therefore, it would have been obvious to a skilled artisan at the time the application was filed in order to attain a product with desired texture, shelf life and or flavor, and thus arrive at the claimed limitations.
As to the relative contents of the constituents recited in claims 1 and 7: While the prior art fails to disclose the relative contents recited in claims 1 and 7, Falconnier discloses adjusting the powdered cereal content (dietary fiber e.g., rice flour) in order to attain desired protein content and texture (see Falconnier paragraphs [0013]-[0015]) and Holz-Schietinger discloses adjusting the amount of acidifier, flavorants and oil to attain desired flavor and texture (see Holz-Schietinger paragraphs [0138]-[0140]). Therefore, it would have been obvious to a skilled artisan at the time the application was filed to have modified Falconnier and Holz-Schietinger and to have adjusted the relative contents of the constituents in order to attain non-dairy dairy product replicas with desired flavor, texture and shelf life, and thus arrive at the claimed limitations. As set forth in MPEP §2144.05 discovering an optimum value of a result effective variable, involves only routine skill in the art.
As to the absence of protein concentrate or isolate recited in claims 3, 21 and 23: Falconnier fails to disclose using protein isolate and/or protein concentrate in the non-dairy cream product.
As to the median particle size of the puree nuts recited in claims 8, 22 and 24: While the median particle size is not disclosed in Falconnier, Falconnier discloses forming the puree by dry fine grinding until a creamy puree is formed, as the texture depends on the fineness (i.e., particle size) (see Falconnier paragraph [0010]). Therefore, it would have been obvious to a skilled artisan at the time the application was filed, to have modified Falconnier and to have ground the nuts until a desired creamy puree is formed, and thus arrive at the claimed particle size. As set forth in MPEP §2144.05 discovering an optimum value of a result effective variable, involves only routine skill in the art.
In the alternative, given the fact applicant is claiming the same or similar puree as the puree disclosed in Falconnier, it is examiner’s position the median particle size recited in claims 22 and 24 is inherently present in Falconnier. As set forth in MPEP §2112.01, "where...the claimed and prior art products are identical or substantially identical, or are produced by identical or substantially identical processes, the PTO can require an applicant to prove that the prior art products do not necessarily or inherently possess the characteristics of his claimed product. Whether the rejection is based on "inherency" under 35 USC 102, on "prima facie obviousness" under 35 USC 103, jointly or alternatively, the burden of proof is the same, and its fairness is evidenced by the PTO's inability to manufacture products or to obtain and compare prior art products. See In re Brown, 59 CCPA 1036, 459 F.2d 531,173 USPQ 685 (1972)." In re Best, Bolton and Shaw 195 USPQ 430 (CCPA 1977).
Moreover regarding claims 1 and 7: Attention is invited to In re Levin, 84 USPQ 232 and the cases cited therein, which are considered germane to the instant case. At page 234, the Court stated as follows: This court has taken the position that new recipes or formulas for cooking food which involve the addition or elimination of common ingredients, or for treating them in ways which differ from the former practice, do not amount to invention, merely because it is not disclosed that, in the constantly developing art of preparing food, no one else ever did the particular thing upon which the applicant asserts his right to a patent. In all such cases, there is nothing patentable unless the applicant by a proper showing further establishes a coaction or cooperative relationship between the selected ingredients, which produces a new, unexpected and useful function. In re Benjamin D. White, 17 C.C.P.A. (Patents) 956, 39 F.2d 974, 5 USPQ 267; In re Mason et al., 33 C.C.P.A. (Patents) 1144, 156 F.2d 189, 70 USPQ 221. Thus, it would have been obvious to a skilled artisan at the time the application was filed to have modified Falconnier and Holz-Schietinger and to have adjusted the relative contents of the constituents in order to attain non-dairy dairy product replicas with desired flavor, texture and shelf life, and thus arrive at the claimed limitations.
As to the source of soluble fibers recited in claims 4, 14, 21 and 23: Falconnier discloses a non-dairy cream product comprising dietary fibers (see Flaconnier abstract; paragraphs [0012] and [0018]). puree nuts (e.g., almonds), rice flour, flavorings (e.g., salt), ferments, water (i.e., cereal milk), vitamins, natural flavorants and extracts, wherein the vegetable fibers may be from added cereal powder (see Falconnier abstract; paragraphs [0013]-[0019]; claim 1) and from added soluble fibers (see Falconnier paragraph [0023]), but fails to disclose the claimed source of the soluble dietary fibers; However, since it appears that Applicant is merely putting the source of the soluble edible fibers not to differentiate the effect of having the soluble edible fiber in a particular amount from other sources, but merely to give credence to where the source is. As such, it is Examiner’s position that the source of the soluble dietary fiber from chicory, psyllium, mucilaginous fiber, linseed or chia seed recitations do not render the current limitations patentably distinct from the prior art.
Regarding claims 2 and 17: Falconnier fails to disclose the content of the protein in the product, but discloses increasing the proportion of cereal powder in order to prepare a hyper-protein product (see Falconnier paragraph [0015]). Therefore, it would have been obvious to a skilled artisan to have modified Falconnier and to have adjusted content of the cereal powder added, in order to attain a product with desired protein content, and thus arrive at the claimed limitations. As set forth in MPEP §2144.05 discovering an optimum value of a result effective variable, involves only routine skill in the art.
Regarding claim 6: Falconnier fails to disclose using soybean in the non-dairy cream product.
Regarding claim 8: Falconnier discloses an embodiment that the non-dairy cream product may be fermented and be formed to a yogurt-type product (see Falconnier paragraphs [0009] and [0034]), but fails to disclose the dry extract content, or the pH of the yogurt-type product; However, given the fact the yogurt-type composition in Falconnier in view of Holz-Schietinger is similar to the claimed composition, and since the pH of yogurt is between 4.0 and 4.6, it is examiner’s position the claimed dry extract content, and pH, are inherently present in the prior art. As set forth in MPEP §2112.01, "where...the claimed and prior art products are identical or substantially identical, or are produced by identical or substantially identical processes, the PTO can require an applicant to prove that the prior art products do not necessarily or inherently possess the characteristics of his claimed product. Whether the rejection is based on "inherency" under 35 USC 102, on "prima facie obviousness" under 35 USC 103, jointly or alternatively, the burden of proof is the same, and its fairness is evidenced by the PTO's inability to manufacture products or to obtain and compare prior art products. See In re Brown, 59 CCPA 1036, 459 F.2d 531,173 USPQ 685 (1972)." In re Best, Bolton and Shaw 195 USPQ 430 (CCPA 1977).
Regarding claim 13: Falconnier discloses using rice cream (see Falconnier paragraphs [0010], [0035]-[0054] (Examples 1-4)), which is known to comprise of pregelatinized rice flour.
Response to Arguments
Applicant's arguments filed on September 15th 2025 have been fully considered but they are not persuasive.
Applicant argues on pages 7-8 of the “Remarks” that the prior art references fail to render the claimed invention obvious, because neither Falconnier nor Holz-Schietinger disclose the claimed 1-8% food fibers. The examiner respectfully disagrees.
To clarify, in paragraphs [0013]-[0015], Falconnier discloses adjusting the content of the added food fiber (i.e., cereal powder) to attain desired protein content and texture. Therefore, it would have been obvious to a skilled artisan to modify Falconnier and to have adjusted the relative content of added food fiber in order to attain a product with desired texture and protein content, and thus arrive at the claimed limitations. As set forth in MPEP §2144.05 discovering an optimum value of a result effective variable, involves only routine skill in the art.
Applicant argues on page 8 of the “Remarks” that the prior art references fail to render the claimed invention obvious, because Falconnier fails to disclose the claimed protein content. The examiner respectfully disagrees.
While Falconnier fails to disclose the content of the protein in the product, Falconnier discloses increasing the proportion of cereal powder in order to prepare a hyper-protein product (see Falconnier paragraph [0015]). Therefore, it would have been obvious to a skilled artisan to have modified Falconnier and to have adjusted content of the cereal powder added, in order to attain a product with desired protein content, and thus arrive at the claimed limitations. As set forth in MPEP §2144.05 discovering an optimum value of a result effective variable, involves only routine skill in the art.
Applicant argues on pages 8-9 of the “Remarks” that the prior art references fail to render the claimed invention obvious, because neither Flaconnier, nor Holz-Schietinger disclose the claimed median particle size. The examiner respectfully disagrees.
Falconnier discloses forming the puree by dry fine grinding until a creamy puree is formed, as the texture depends on the fineness (i.e., particle size) (see Falconnier paragraph [0010]). Therefore, it would have been obvious to a skilled artisan at the time the application was filed, to have modified Falconnier and to have ground the nuts until a desired creamy puree is formed, and thus arrive at the claimed particle size. As set forth in MPEP §2144.05 discovering an optimum value of a result effective variable, involves only routine skill in the art.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ASSAF ZILBERING whose telephone number is (571)270-3029. The examiner can normally be reached M-F 8:30-5:00.
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, Erik Kashnikow can be reached at (571) 270-3475. 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.
/ASSAF ZILBERING/Examiner, Art Unit 1792