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 pending claims on 05/26/2026.
Claims 1 and 3-4 are pending in the application. Claim 1 is currently amended. Claim 2 is newly cancelled. Claims 3-4 are newly presented. Claims 1 and 3-4 are 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Any objections and/or rejections that are made in the previous actions and are not repeated below, are hereby withdrawn.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 Objections
Claim 1 is objected to because of the following informalities: line 8, “and/or” should read “or”. Appropriate correction is required.
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 “ 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. In particular, 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 in the packaging process.
Claims 4 depends from claim 3 and recites that if one or more additional ingredients are added to the cheese trim and/or the cheese curd, the temperature may be changed. The examiner does not find the support for such a limitation. It is noted that para. 0013 of the instant specification recites “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”. As can be seen, while the instant specification supports a limitation that the temperature may be changed if a flavor is added, the instant specification does not provide sufficient support for a limitation that the temperature may be changed if a generic additional ingredient is added to the cheese curd.
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 “one or more of the cheese curd logs” in line 10-11. There is insufficient antecedent basis for the limitation “the cheese curd logs” in the claim (claim 1 only recites a cheese curd log, in singular form). Appropriate correction is required.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 4 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
Claim 4 ultimately depends from claim 1 and recites that if one or more additional ingredients are added to the cheese trim and/or the cheese curd, the temperature may be changed. Such a limitation fails to include all the limitations of the claim upon which it depends, in particular, such a limitation violates claim 1 limitation about forming and packaging the mixed cheese curd at a single, stable temperature through-out the process.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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.
Claims 1 and 3 are 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 log (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 log is packaged in a sealed and see-through plastic packaging (first and second photos; third para). Since the cheese curd log is sealed, the packaging is necessarily airtight.
The limitation about “wherein the cheese curd log is comprised of a cheese trim or a cheese curd that undergoes a process wherein the cheese trim and/or a cheese curd is stirred to form a raw, mixed cheese curd, wherein the mixed cheese curd is formed into one or more of the cheese curd logs via a high pressure extrusion process using an extrusion device to cause the cheese curd log to have a predefined shape, and wherein each of the one or more cheese curd logs are 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 one or more cheese curd logs into the predefined shape” is product-by-process limitation, since claim 1 directed to a final cheese curd log 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 log 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 log; in the instant case, given that the cheese curd log 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 3 is met by Plovnick because although the reference is silent regarding whether an additional ingredient is included in the cheese curd, the claim recites that one or more additional ingredients may be added to the cheese curd, which is construed to mean that the additional ingredient is optionally included in the cheese curd.
Claims 1 and 3 are 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 log of cheese (e.g., 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, 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 limitation about “wherein the cheese curd log is comprised of a cheese trim or a cheese curd that undergoes a process wherein the cheese trim and/or a cheese curd is stirred to form a raw, mixed cheese curd, wherein the mixed cheese curd is formed into one or more of the cheese curd logs via a high pressure extrusion process using an extrusion device to cause the cheese curd log to have a predefined shape, and wherein each of the one or more cheese curd logs are 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 one or more cheese curd logs into the predefined shape” is product-by-process limitation, since claim 1 directed to a final cheese curd log 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.
Although Jackson is silent regarding the conditions of extruding and packaging the cheese (e.g., pressure, temperature, etc.), the final cheese curd log as disclosed by prior art comprises a cheese curd is a log 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 log; in the instant case, given that the cheese curd log 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.
Regarding claim 3, Jackson teaches that an additional ingredient (e.g., salt) is added to the cheese curd (column 4, line 70-75).
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 log (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 log 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 a log or 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 log is comprised of a cheese trim or a cheese curd that undergoes a process wherein the cheese trim and/or a cheese curd is stirred to form a raw, mixed cheese curd, wherein the mixed cheese curd is formed into one or more of the cheese curd logs via a high pressure extrusion process using an extrusion device to cause the cheese curd log to have a predefined shape, and wherein each of the one or more cheese curd logs are 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 one or more cheese curd logs into the predefined shape” is product-by-process limitation, since claim 1 directed to a final cheese curd log 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, 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 log, 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 log; 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.
Regarding claim 3, Galal teaches adding a salt or a fortificant (e.g., vitamins) to the cheese curd (0016-0017).
Response to Arguments
Applicant's arguments filed 05/26/2026 have been fully considered and the examiner’s response is shown below.
The argument on 35 USC 112(a) rejection is considered. However, the examiner notes that applicant has not shed light on where the disclosure as originally filed has the support for packaging the extruded cheese curd at a single stable temperature-assuming the disclosure supports extruding cheese curd at a stable temperature.
The 35 USC 112 rejection about “and/or” is withdrawn.
Regarding the 35 USC 102/103 rejection over Plovnick, or Jackson, applicant argues on page 7 of the Remarks that “extruding cheese curds is very different from extruding string cheese”.
The argument is considered but found irrelevant to the rejection, simply because string cheese is not what the rejection relies upon. Instead, the rejection relies on the Cheddar cheese as disclosed by Plovnick or Jackson, which is not a string cheese.
Applicant argues on page 8 of the Remarks that extruding cheese curds is very different from extruding cheddar cheese, and extruding cheese curds require different problems solved.
The arguments are considered but found unpersuasive. It appears that applicant is arguing about a feature that is not even claimed. Nowhere in the claim says the cheese curd for making the cheese curd log is not a cheddar cheese curd, or a cheese curd that does not go through the cheddaring (e.g., stacking) step, nor does the applicant elaborate how different the cheese curd of claim 1 is different from a cheese curd that goes through cheddaring process. Note that claim 1 merely recites “cheese curd” in a very generic manner.
Further, the examiner notes that where the office action submits that the cheese curd log as disclosed by prior art is materially indistinguishable from the one recited in the claim, applicant has not been able to show by convincing evidence or reasoning how they are different, or what different characteristics the process as recited in claim 1 has imparted to the cheese curd log.
For the reason set forth above, applicant’s argument on in page 10 of the Remarks regarding the 35 USC 103 rejection over Galal in view of Lalli is not persuasive, either.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CHANGQING LI whose telephone number is (571)272-2334. The examiner can normally be reached 9:00-5:00.
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/CHANGQING LI/Primary Examiner, Art Unit 1791
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