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1.114, and the fee set forth in 37 CFR 1.114 has been timely paid, the finality of the previous Office Action has been withdrawn pursuant to 37 CFR 1.114.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 10/17/2025 has been entered.
Claim status
The examiner acknowledges the amendment made to pending claims on 10/17/2025.
Claims 1-2 are pending in the application. Claim 1 is currently amended. Claim 2 is withdrawn on the ground of election by original presentation. Claim 1 is hereby examined on the merit.
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Any objections and/or rejections that are made in the previous actions and are not repeated below, are hereby withdrawn.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.
Claim 1 is 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 recites “non-fibrous” cheese curd snack. The examiner does not find the support for the limitation about the non-fibrous feature of the cheese curd snack in the disclosure as originally filed. As a matter fact, nowhere in the instant specification recites the cheese curd snack is fibrous or non-fibrous.
Claim 1 recites “ wherein the process includes extruding, forming and packaging the mixed cheese curd at a single, stable temperature through-out the process”. The examiner does not find the support for such a limitation in the disclosure as originally filed. The examiner notes that the only part in the instant specification that discusses the temperature is in para. [0013], which recites “Next, the extrusion process may be started in which a high-pressure process reforms the cheese trim 10 into a desirable shape 20 and size. This may be accomplished without changing temperatures so that the profile of the desirable shape 20, stays the same unless one chooses to change it by adding flavors 12. The reformed cheese 20, is then processed through a packaging line 35, for conversion into the original retail size 23, or as desired 23”.
From the para. above, it can be seen that first, the disclosure as originally filed does not shed any light on the temperature of packaging the extruded cheese curd, thus failing to support the limitation about maintaining a single and stable temperature throughout the extruding and packaging process, and second, by merely reciting “This may be accomplished without changing temperatures” with temperature being in plural form, one would not interpret that the limitation about a single and stable temperature is sufficiently supported. It could be that a temperature range is maintained.
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 is 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 that the cheese curd snack is comprises of a cheese trim OR a cheese curd, then recites that the cheese trim AND/OR a cheese curd is mixed to form a raw, mixed cheese curd. It is unclear whether the scope of the claim requires one of the cheese trim and the cheese curd, or both the cheese curd and cheese trim. Clarification is required.
Claim Rejections - 35 USC § 102/103
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
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.
Claim 1 is rejected under 35 U.S.C. 102(a)(1) as anticipated by or, in the alternative, under 35 U.S.C. 103 as obvious over Plovnick, Supermarket Showdown: String Cheese [Online], published July 02, 2015, [retrieved on 2024-04-25]. Retrieved from the Internet: <URL: https://culturecheesemag.com/blog/supermarket-showdown-string-cheese/> (hereinafter referred to as Plovnick).
Regarding claim 1, Plovnick teaches a solid cheese curd snack (e.g., a string cheese such as Polly-O which is fibrous in nature, or a Cracker Barrel Cheddar cheese which is not a string cheese thus being non-fibrous, see first photo and page 4, under “Cracker Barrel” which discloses “Cracker Barrel doesn’t actually offer a string cheese product. Instead, they have individually wrapped Cheddar Cheese Sticks”) comprising a first end, a second, and a length extending between the two ends (first and second photos; first para.), wherein the cheese curd snack is packaged in a sealed and see-through plastic packaging (first and second photos; third para). Since the cheese curd snack is sealed, the packaging is necessarily airtight.
The limitation about “wherein the cheese curd snack is comprised of a cheese trim or a cheese curd that undergoes a process wherein the cheese trim and/or a cheese curd is mixed to form a raw, mixed cheese curd, wherein the mixed cheese curd is formed into an individual solid, non-fibrous cheese curd snack via a high pressure extrusion process using an extrusion device to cause the individual cheese curd snack to have a predefined shape, and packaged in a sealed and airtight see-through plastic packaging, wherein the process includes extruding, forming and packaging the mixed cheese curd at a single, stable temperature through-out the process to cause an extruded mixed cheese curd to form the individual solid, non-fibrous cheese curd snack which retains the predefined shape” is product-by-process limitation, since claim 1 directed to a final cheese curd snack product, as opposed to a process of extruding and packaging cheese. "[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process." In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985). See MPEP 2113.
In the instant case, judging from the disclosure of Plovnick, the cheese curd stick is necessarily obtained from an extruding and packaging process. Although Plovnick is silent regarding the conditions of extruding and packaging the cheese (e.g., pressure, temperature, etc.), the final cheese curd snack as disclosed by prior art comprises a cheese curd that has a first end, a second end and a length, and is packaged in a sealed, and airtight see-through plastic packaging; further, the product-by-process limitation as in instant claim 1 is suggesting that the high pressure extrusion or the temperature control during extrusion is for the purpose of forming and maintaining the shape of the cheese curd snack; in the instant case, given that the cheese curd snack as disclosed by prior art has a defined shape, the examiner submits that the cheese stick in the package as disclosed by prior art is either materially indistinguishable from the one as claimed, or is essentially the same. Therefore, Plovnick anticipates or renders obvious claim 1.
Claim 1 is rejected under 35 U.S.C. 102(a)(1) as anticipated by or, in the alternative, under 35 U.S.C. 103 as obvious over Jackson US Patent No. 2,813,028 (hereinafter referred to as Jackson).
Regarding claim 1, Jackson teaches a solid raw cheddar cheese curd that is extruded via an extrusion device into cheese of elongated and cylindrical-shapes (Fig. 1 column 4, line 15-20; column 5, line 12-27), which necessarily has a first end, a second end, and a length that extends between the first end and the second end. Further, since Jackson teaches that he cheese is Cheddar cheese and there is no a stretching step (column 1, line 60-column 2, line 49), the limitation about the cheese curd being “non-fibrous” is met.
Further, Jackson teaches the step of mixing (e.g., kneading and comminuting) the cheese curd before extruding (claim 2); further, Jackson teaches pressure is applied during extrusion (column 4, line 6); further, Jackson teaches packaging the extruded cheese curd in a sealed, and airtight see-through plastic casing (column 4, line 15-42, the film is moisture proof, slightly permeable to carbon dioxide under pressure, and transparent or translucent; see also column 5, line 13-14 and 27-29, one end is tied and the other end is tied with string).
The “snack” as in “cheese curd snack” in the preamble is not considered to further limit the claim. It is the Examiner’ s position that the intended use recited in the present claims do not result in a structural difference between the presently claimed composition and the prior art composition and further that the composition of the prior art is capable of performing the intended uses. Given that Jackson teaches that the cheese product produced is of excellent quality, displaying the desirable characteristics of flavor, body texture, and appearance (column 6, 3-6), it is clear that the packaged extruded cheese as disclosed by prior art would be capable of performing the intended uses, i.e., for use as a snack.
The limitation about “wherein the cheese curd snack is comprised of a cheese trim or a cheese curd that undergoes a process wherein the cheese trim and/or a cheese curd is mixed to form a raw, mixed cheese curd, wherein the mixed cheese curd is formed into an individual solid, non-fibrous cheese curd snack via a high pressure extrusion process using an extrusion device to cause the individual cheese curd snack to have a predefined shape, and packaged in a sealed and airtight see-through plastic packaging, wherein the process includes extruding, forming and packaging the mixed cheese curd at a single, stable temperature through-out the process to cause an extruded mixed cheese curd to form the individual solid, non-fibrous cheese curd snack which retains the predefined shape” is product-by-process limitation, since claim 1 directed to a final cheese curd snack product as opposed to a process of extruding cheese. "[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process." In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985). See MPEP 2113.
Although Jackson is silent regarding the conditions of extruding and packaging the cheese (e.g., pressure, temperature, etc.), the final cheese curd snack as disclosed by prior art comprises a cheese curd that has a first end, a second end and a length, and is packaged in a sealed, and airtight see-through plastic packaging; further, the product-by-process limitation as in instant claim 1 is suggesting that the high pressure extrusion or the temperature control during extrusion is for the purpose of forming and maintaining the shape of the cheese curd snack; in the instant case, given that the cheese curd snack as disclosed by prior art has a defined shape, the examiner submits that the cheese in the package as disclosed by prior art is either materially indistinguishable from the one as claimed, or is essentially the same. Therefore, Jackson anticipates or renders obvious claim 1.
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.
Claim 1 is rejected under 35 U.S.C. 103 as being unpatentable over Galal US Patent Application Publication No. 2006/0246180 A1 (hereinafter referred to as Galal) in view of Lalli US Patent Application Publication No. 2015/0050395 (hereinafter referred to as Lalli).
Regarding claim 1, Galal teaches a solid raw cheese curd snack (e.g., elongated cheese such as cheddar, Mozzarella, Swiss, etc.) formed via an extrusion process into a snack of single size using an extrusion device and packaged (0016; 0018; 0027; Fig. 1). Further, the disclosure of Galal suggests that the cheese curd snack is either a fibrous cheese (e.g., string cheese), or a non-fibrous cheese (see 0022, which recites that “In the case of string cheese, the cooked product is then passed to a mixture/molder 16 for stretching”, and see also 0018, which teaches that the cheese is cheddar cheese- it is known that it will not be possible for making a string cheese out of cheddar cheese).
Given that the cheese curd is an elongated cheese that is obtained by extrusion, it necessarily has a first end, a second end, and a length that extends between the first end and the second end.
Galal teaches packaging the cheese but is silent regarding that it is packaged in a sealed, airtight and see-through plastic packaging.
Lalli teaches a cheese that is packaged (e.g., wrapped) in a sealed and airtight plastic packaging, and further teaches that the cheese is typically wrapped with see-through (e.g., transparent) plastic sheets (Fig. 1; Abstract; claim 1; 0006).
Both Galal and Lalli are directed to cheese sticks. 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 Galal by wrapping the stick of cheese in sealed, airtight and see-through plastic packaging for the reason that prior art has established that it is suitable to package a cheese stick the aforementioned way. One of ordinary skill in the art, before the effective filing date of the claimed invention, would have had expected that wrapping a stick of cheese in in a sealed and airtight plastic packaging will extend the shelf-life of the cheese and wrapping a stick of cheese in a transparent sheet will make the product visible to the consumer.
The limitation about “wherein the cheese curd snack is comprised of a cheese trim or a cheese curd that undergoes a process wherein the cheese trim and/or a cheese curd is mixed to form a raw, mixed cheese curd, wherein the mixed cheese curd is formed into an individual solid, non-fibrous cheese curd snack via a high pressure extrusion process using an extrusion device to cause the individual cheese curd snack to have a predefined shape, and packaged in a sealed and airtight see-through plastic packaging, wherein the process includes extruding, forming and packaging the mixed cheese curd at a single, stable temperature through-out the process to cause an extruded mixed cheese curd to form the individual solid, non-fibrous cheese curd snack which retains the predefined shape” is product-by-process limitation, since claim 1 directed to a final cheese curd snack product as opposed to a process of extruding cheese. "[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process." In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985). See MPEP 2113.
In the instant case, Galal teaches that the cheese is made by extrusion. Although Galal in view of Lalli is silent regarding the conditions of extruding and packaging the cheese (e.g., pressure, temperature, etc.), the final cheese as disclosed by prior art comprises cheese curd, has a first end, a second end, and a length extending between the two ends, and is packaged in a sealed, and airtight see-through plastic packaging; further, the product-by-process limitation as in instant claim 1 is suggesting that the high pressure extrusion or the temperature control during extrusion is for the purpose of forming and maintaining the shape of the cheese curd snack; therefore, given that the cheese as disclosed by prior art has a defined shape, the examiner submits that the cheese in the package as disclosed by prior art is either materially indistinguishable from the one as claimed, or is essentially the same. Therefore, Galal in view of Lalli renders obvious claim 1.
Response to Arguments
Applicant's arguments filed 10/17/2025 have been fully considered and the examiner’s response is shown below.
The 35 USC 103 rejection over Lalli or over Rhodes as modified by Lalli are withdrawn in view of the amendment that the cheese curd is “non-fibrous”.
Regarding Plovnick as cited in the 35 USC 102/103 rejection, applicant argues on page 5 of the Remarks that the reference fails to teach a non-fibrous cheese, rather, Plovnick teaches a non-solid, fibrous cheese.
The argument is considered but found unpersuasive. Plovnick actually taches a non-fibrous cheese. To this end, applicant is invited to refer to Plovnick page 4 of under “Cracker Barrel” which discloses “Cracker Barrel doesn’t actually offer a string cheese product. Instead, they have individually wrapped Cheddar Cheese Sticks”. Further, it is unclear what applicant means by asserting that Plovnick teaches a “non-solid” cheese. Does applicant mean that Plovnick teaches a liquid cheese? Judging from the photos of Plovnick, the cheese of Plovnick is very solid.
Regarding Jackson as cited in the 35 USC 102/103 rejection, applicant argues on page 5 of the Remarks that by reciting an extrusion temperature at a range of 65-130° F, Jackson teaches away from a single stable temperature.
The argument is considered but found unpersuasive because:
First, where Jackson teaches a range of temperature, Jackson does not teaches away from a single temperature. What one can reasonably infer from the teaching is that any temperature (a range or a point) between 65° F and 130° F is suitable.
Second, since the process including the conditions of extrusion is product-by-process limitation, it does not really matter if Jackson does not teach a single temperature, rather, what matter is whether extruding at a single temperature will result a product that is different from the product extruded at a temperature range. "[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process." In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985). See MPEP 2113. In the instant case, where the analysis by the examiner reaches the conclusion that the prior art cheese curd is either materially indistinguishable from the one as claimed, or is essentially the same, applicant has never shown otherwise by convincing evidence or reasoning.
Third, the product-by-process limitation as in instant claim 1 appears to suggest that the high pressure extrusion or the temperature control during extrusion and packaging is for the purpose of forming and maintaining the shape of the cheese curd snack, to this end, the cheese curd as disclosed by prior art has a defined shape.
Fourth, the examiner submits that the instant specification does not provide sufficient support for a limitation about performing extrusion at a single temperature. See para. 9 of the instant office action.
Fifth, the examiner notes that the disclosure as originally filed does not recite even one numerical value for the temperature, rendering applicant’s argument about the temperature unpersuasive.
For the reasons set forth above, applicant’s argument on page 5 that Plovnick does not anticipate or render obvious claim 1 because Plovnick fails to teach an extrusion at a high temperature and at a single stable temperature is not persuasive, either (e.g., where the examiner arrives at the conclusion that the cheese curd as disclosed by Plovnick is either materially indistinguishable from the one as claimed, or is essentially the same, applicant has not shown that the high pressure extrusion at one single temperature has resulted in a different product).
For the reasons set forth above, applicant’s argument on page 6 of the Remarks that since Jackson does not teach a high pressure the reference fails to meet the claim is not persuasive, either (e.g., where the examiner arrives at the conclusion that the cheese curd as disclosed by Jackson is either materially indistinguishable from the one as claimed, or is essentially the same, applicant has not shown that the high pressure has resulted in a different product). Further, applicant’s reasoning fails to address why the pressure as disclosed by Jackson is not high pressure, simple because applicant has not shed any light on what threshold pressure differentiates a high pressure from a low one. As a matter of fact, no numerical value for pressure is recited in the disclosure as originally filed, rendering applicant’s argument about the high pressure unpersuasive.
For the reasons set forth above, applicant’s arguments on page 8 of the Remarks since Gala as modified by Lalli does not teach the limitation about pressure or temperature the cited arts in combination fails to meet the claim are not persuasive, either.
Conclusion
Pertinent art
The prior art made of record and not relied upon is considered pertinent to applicant’s disclosure
Lemoine US Patent Application Publication No. 2020/0128840 A1, which discloses a method of manufacturing a cheese string by extruding a cheese paste through a die.
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/CHANGQING LI/Primary Examiner, Art Unit 1791