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 .
The amendment filed February 2, 2026 is acknowledged. Claims 76-82 and 84-101 are pending in the application. Claims 1-75 and 83 have been cancelled. Claim 94 has been withdrawn from consideration.
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 in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 February 2, 2026 has been entered.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
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 76-82, 84-93, and 95-101 are rejected under 35 U.S.C. 103 as being unpatentable over Pandya et al. US 20170273328 (hereinafter “Pandya”).
With respect to claim 76, Pandya teaches food products (paragraphs [0002], [0035], [0042], [0228], [0229], and [0253]).
Regarding the recitation of comprising a coagulated colloid, wherein the coagulated colloid comprises α casein protein and κ casein protein associated in a micellar form, wherein at least one of the α (alpha) casein protein and κ (kappa) casein protein is recombinantly produced, and wherein the micellar form does not contain β (beta) casein protein in claim 76, Pandya teaches the food product includes casein milk proteins. At least two types of casein proteins are in a micellar formation, and the casein proteins are recombinantly produced. The casein proteins are selected from κ-casein, α-S1-casein, α-S2-casein, and β-casein (paragraphs [0035], [0057], [0068], [0114], [0129], [0193], [0194], [0230], and [0253]). From the disclosure of Pandya, casein protein combinations in micellar formation include κ-casein and α-S1-casein, κ-casein and α-S2-casein, κ-casein and β-casein, α-S1-casein and α-S2-casein, α-S1-casein and β-casein, and α-S2-casein and β-casein. Thus, an edible composition comprising recombinant α casein protein and recombinant κ casein protein in a micellar form that does not contain β casein as presently claimed, such as casein protein combinations including κ-casein and α-S1-casein and κ-casein and α-S2-casein as previously demonstrated, can be “at once envisaged” from the disclosure of Pandya. One of ordinary skill in the art must be able to draw the structural formula or write the name of each of the compounds included in the generic formula before any of the compounds can be "at once envisaged." In re Petering, 301 F.2d 676, 133 USPQ 275 (CCPA 1962) and MPEP 2131.02.
Regarding the recitation of wherein (i) the α casein protein is lacking or substantially reduced in post-translational modification (PTM) relative to a native α casein protein, or (ii) the κ casein protein is lacking or substantially reduced in PTM relative to a native κ casein protein, or both (i) and (ii) in claim 76, Pandya teaches the recombinantly produced α casein protein and the recombinantly produced κ casein protein lack and/or expresses the same glycosylation and phosphate groups as compared to native α casein protein and native κ casein protein and is silent with respect to post-translational modifications in this embodiment (paragraphs [0026], [0110], [0193], and [0194]).
Regarding the recitation of wherein the ratio of α casein protein to κ casein protein is from 1:1 to 3:1 in claim 76, Pandya teaches the casein composition comprises about 12-15 g/L of α-S1-casein, about 3-4 g/L of α-S2-casein, and about 2-4 g/L of κ-casein, which is equivalent to a ratio of α-S1-casein : κ-casein of about 3-7.5 : 1 (calculated from 12-15 g/L / 2-4 g/L) and a ratio of α-S2-casein : κ-casein of about 0.75-2 : 1 (calculated from 3-4 g/L / 2-4 g/L) (paragraph [0230]). The ranges of Pandya overlap with the presently claimed range. As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
With respect to claim 77, Pandya is relied upon for the teaching of the composition of claim 76 as addressed above.
Regarding the recitation of wherein the recombinantly produced casein is produced from a bacterial host cell in claim 77, Pandya teaches the casein proteins are produced from a bacterial host cell (paragraphs [0035], [0191], and [0193]).
With respect to claim 78, Pandya is relied upon for the teaching of the composition of claim 77 as addressed above.
Regarding the recitation of wherein the bacterial host cell is selected from the group consisting of Lactococci sp., Lactococcus lactis, Bacillus subtilis, Bacillus amyloliquefaciens, Bacillus licheniformis and Bacillus megaterium, Brevibacillus choshinensis, Mycobacterium smegmatis, Rhodococcus erythropolis and Corynebacterium glutamicum, Lactobacilli sp., Lactobacillus fermentum, Lactobacillus casei, Lactobacillus acidophilus, Lactobacillus plantarum, Synechocystis sp. 6803 and E.coli in claim 78, Pandya teaches the bacterial host cell is E. coli (paragraphs [0035], [0191], [0193], and [0317]).
With respect to claim 79, Pandya is relied upon for the teaching of the composition of claim 76 as addressed above.
Regarding the recitation of wherein the α casein protein completely lacks or is substantially reduced in post-translational modification as compared to animal-derived α casein in claim 79, Pandya teaches the recombinantly produced α casein protein lack and/or expresses the same glycosylation and phosphate groups as compared to animal-derived casein protein and is silent with respect to post-translational modifications in this embodiment (paragraphs [0026], [0110], [0193], and [0194]).
With respect to claim 80, Pandya is relied upon for the teaching of the composition of claim 76 as addressed above.
Regarding the recitation of wherein the α casein protein completely lacks or is substantially reduced in phosphorylation as compared to animal-derived α casein in claim 80, Pandya teaches the recombinantly produced α casein protein lacks phosphate groups as compared to animal-derived casein protein (paragraph [0110]).
With respect to claim 81, Pandya is relied upon for the teaching of the composition of claim 76 as addressed above.
Regarding the recitation of wherein the κ casein protein completely lacks or is substantially reduced in post-translational modification as compared to animal-derived κ casein in claim 81, Pandya teaches the recombinant κ casein protein lacks and/or expresses the same glycosylation and phosphate groups as compared to animal-derived casein protein and is silent with respect to post-translational modifications in this embodiment (paragraphs [0026], [0110], [0193], and [0194]).
With respect to claim 82, Pandya is relied upon for the teaching of the composition of claim 81 as addressed above.
Regarding the recitation of wherein the κ casein protein completely lacks or is substantially reduced in glycosylation, phosphorylation or both glycosylation and phosphorylation as compared to animal-derived κ casein in claim 82, Pandya teaches the recombinant κ casein protein lacks the same glycosylation and/or phosphate groups as compared to animal-derived casein protein (paragraphs [0026], [0110], and [0194]).
With respect to claim 84, Pandya is relied upon for the teaching of the composition of claim 76 as addressed above.
Regarding the recitation of wherein the ratio of α casein protein to κ casein protein is from 1:1 to 2:1 in claim 84, Pandya teaches the casein composition comprises about 12-15 g/L of α-S1-casein, about 3-4 g/L of α-S2-casein, and about 2-4 g/L of κ-casein, which is equivalent to a ratio of α-S1-casein : κ-casein of about 3-7.5 : 1 (calculated from 12-15 g/L / 2-4 g/L) and a ratio of α-S2-casein : κ-casein of about 0.75-2 : 1 (calculated from 3-4 g/L / 2-4 g/L) (paragraph [0230]). The ranges of Pandya overlap with the presently claimed range. As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (The prior art taught carbon monoxide concentrations of "about 1-5%" while the claim was limited to "more than 5%." The court held that "about 1-5%" allowed for concentrations slightly above 5% thus the ranges overlapped.)
With respect to claim 85, Pandya is relied upon for the teaching of the composition of claim 76 as addressed above.
Regarding the recitation of wherein the α casein protein is αS1 or αS2 in claim 85, Pandya teaches the α-casein protein is α-S1-casein or α-S2-casein (paragraphs [0035], [0057], [0114], [0125]-[0128], [0194], and [0230]).
With respect to claim 86, Pandya is relied upon for the teaching of the composition of claim 76 as addressed above.
Regarding the recitation of wherein the α casein protein has an amino acid sequence comprising one of SEQ ID NO. 1-26 or a variant thereof with at least 80% sequence homology in claim 86, Pandya teaches the α-casein protein has an amino acid sequence of SEQ ID NO. 1 (variants: No.48-99.4%, No. 52-86.5%, and No. 70-87.6% homology), 2 (variants: No.48-99.3%, No. 52-86.0%, and No. 70-86.8% homology), 3 (variants: No.48-88.8%, No. 52-96.4%, and No. 70-99.5% homology), 4 (variants: No.48-88.1%, No. 52-96.6%, and No. 70-99.5% homology), 5 (variants: No. 48-87.6%, No. 52-97.0%, and No. 70-97.1% homology), 6 (variants: No.48-86.8%, No. 52-97.2%, and No. 70-96.9% homology), 7 (variants: No.48-94.6%, No. 52-83.9%, and No. 70-85.1% homology), 8 (variants: No.48-94.2%, No. 52-83.3%, and No. 70-84.1% homology), 9 (No. 57), 9 (variants: No. 54-99.5% and No. 56-98.3% homology), 10 (No. 57), 10 (variants: No. 54-99.4% and No. 56-98.1% homology), 11 (variant: No. 50-94.9% homology), 12 (variant: No. 50-94.6% homology), 13 (variant: No. 61-99.6% homology), 14 (variant: No. 61-99.6% homology), 15 (variants: No.78-99.1%, No. 80-87.5%, and No. 88-88.3% homology), 16 (variants: No.78-99.1%, No. 80-86.6%, and No. 88-87.4% homology), 17 (No. 88), 17 (variants: No.78-85.4% and No. 80-98.4% homology), 18 (No. 88), 18 (variants: No.78-84.5% and No. 80-98.3% homology), 19 (No. 80), 19 (variants: No.78-84.3% and No. 88-98% homology), 20 (No. 80), 20 (variants: No.78-83.3% and No. 88-97.8% homology), 21 (variants: No.78-94.2%, No. 80-89.1%, and No. 88-89.9% homology), and 22 (variants: No.78-93.8%, No. 80-88.4%, and No. 88-89.2% homology) (paragraphs [0125]-[0128] and [0174]; and P67-P75, P79-P80, P84-P86, and P89-P90).
With respect to claim 87, Pandya is relied upon for the teaching of the composition of claim 76 as addressed above.
Regarding the recitation of wherein the κ casein protein has an amino acid sequence comprising one of SEQ ID NO. 27-40 or a variant thereof with at least 80% sequence homology in claim 87, Pandya teaches the κ-casein protein has an amino acid sequence of SEQ ID NO. 27 (variants: No.1-98.6%, No. 3-84.5%, and No. 15-83.4% homology), 28 (variants: No.1-98.4%, No. 3-82.7%, and No. 15-81.5% homology), 29 (No. 15), 29 (variants: No.1-82% and No. 3-96.8% homology), 30 (No. 15), 30 (variants: No.1-80% and No. 3-96.5% homology) or 31 (No. 3), 31 (variants: No.1-83.1% and No. 15-96.7% homology), 32 (No. 3), 32 (variants: No.1-81.2% and No. 15-96.3% homology), 33 (variants: No.1-93%, No. 3-87.1%, and No. 15-85.8% homology) 34 (variants: No.1-92.2%, No. 3-85.6%, and No. 15-84.2% homology), 39 (No. 7), and 40 (No.7) (paragraphs [0123]-[0124 and [0174]]; and P40-P41, P43-P44, and P47-P48).
With respect to claim 88, Pandya is relied upon for the teaching of the composition of claim 76 as addressed above.
Regarding the recitation of further comprising at least one salt selected from the group consisting of a calcium salt, a citrate salt and a phosphate salt in claim 88, Pandya teaches the product further includes one or more of a calcium salt, a phosphate salt, and a citrate salt (paragraphs [0129] and [0165]).
With respect to claim 89, Pandya is relied upon for the teaching of the composition of claim 76 as addressed above.
Regarding the recitation of wherein the coagulated colloid is comprised in a dairy replacement product, a cheese, a curd, a renneted curd, or a yogurt in claim 89, Pandya teaches the food product containing the casein proteins may be a dairy substitute, cheese, yogurt, or curd (paragraphs [0002], [0035], [0042], and [0228]-[0230]).
With respect to claim 90, Pandya is relied upon for the teaching of the composition of claim 76 as addressed above.
Regarding the recitation of wherein the edible composition is a cheese and wherein the cheese has one or more of (a) a fat content more than 0% to about 50%, (b) a fat derived from a plant-based source or (c) a sugar derived from a plant-based source in claim 90, Pandya teaches the food product is a cheese and may comprise plant-derived lipids, about 0 weight % to about 45 weight % of one or more lipids, and sweetening agent(s) from plant sources (paragraphs [0002], [0008], [0013], [0035], [0042], [0064], [0148]-[0149], [0156], [0228], [0229], [0234], and [0253]).
With respect to claim 91, Pandya is relied upon for the teaching of the composition of claim 76 as addressed above.
Regarding the recitation of wherein the edible composition is a cheese and wherein the cheese is capable of melting and browning when heated in claim 91, Pandya teaches the food product is a cheese (paragraphs [0002], [0035], [0042], [0228], [0229], and [0253]). Absent any clear and convincing evidence to the contrary, the characteristic of the cheese is capable of melting and browning when heated would naturally occur from said cheese product since Pandya positively recites the claimed combination of ingredients as demonstrated above in claim 76, Pandya teaches the food product retains its functional characteristics (paragraphs [0040]-[0041]), and this characteristic is an intended result of the claimed composition. Additionally, Applicant is reminded that it has been held that the recitation that an element is “capable of” performing a function is not a positive limitation but only requires the ability to so perform. It does not constitute a limitation in any patentable sense. In re Hutchison, 69 USPQ 138. Further, it is noted that there is no structural difference between the composition of claim 91 and the composition of Pandya. Applicant is reminded the broadest reasonable interpretation of a system (or a product) claim having structure that performs a function, which only needs to occur if a condition precedent is met, requires structure for performing the function should the condition occur. The claimed structure must be present in the system regardless of whether the condition is met and the function is actually performed. See MPEP 2111.04.
With respect to claim 92, Pandya is relied upon for the teaching of the composition of claim 76 as addressed above.
Regarding the recitation of wherein the edible composition is a cheese selected from the group consisting of pasta-filata cheese, paneer, cream cheese, cottage cheese, an aged cheese and a renneted cheese in claim 92, Pandya teaches the food product is a cheese such as cottage cheese, cream cheese, mozzarella, Havarti, Munster, Swiss, Jarlsberg, cheddar, brie, and camembert (paragraphs [0228], [0229], and [0253]).
With respect to claim 93, Pandya is relied upon for the teaching of the composition of claim 76 as addressed above.
Regarding the recitation of wherein the edible composition is a cheese and wherein the texture or hardness of the cheese is comparable to an animal-derived dairy cheese in claim 93, Pandya teaches the product is a cheese and has identical or similar sensory characteristics to traditional dairy-based products such as mouthfeel and texture (paragraphs [0007], [0040]-[0042], [0108], [0228], [0229], and [0253]).
With respect to claim 95, Pandya teaches a milk substitute product (paragraphs [0002], [0035], [0042], and [0228]).
Regarding the recitation of comprising a micellar form, wherein the micellar form comprises a recombinant α casein protein, a recombinant κ casein protein and at least one salt, wherein the micellar form does not include β casein protein in claim 95, Pandya teaches the milk substitute product includes casein milk proteins and at least one salt. At least two types of casein proteins are in a micellar formation, and the casein proteins are recombinantly produced. The casein proteins are selected from κ-casein, α-S1-casein, α-S2-casein, and β-casein (paragraphs [0035], [0057], [0068], [0114], [0129], [0165], [0193], [0194], and [0230]). From the disclosure of Pandya, casein protein combinations in micellar formation include κ-casein and α-S1-casein, κ-casein and α-S2-casein, κ-casein and β-casein, α-S1-casein and α-S2-casein, α-S1-casein and β-casein, and α-S2-casein and β-casein. Thus, an edible composition comprising recombinant α casein protein and recombinant κ casein protein in a micellar form that does not contain β casein as presently claimed, such as casein protein combinations including κ-casein and α-S1-casein and κ-casein and α-S2-casein as previously demonstrated, can be “at once envisaged” from the disclosure of Pandya. A reference disclosure can anticipate a claim when the reference describes the limitations but "'d[oes] not expressly spell out' the limitations as arranged or combined as in the claim, if a person of skill in the art, reading the reference, would ‘at once envisage’ the claimed arrangement or combination." Kennametal, Inc. v. Ingersoll Cutting Tool Co., 780 F.3d 1376, 1381, 114 USPQ2d 1250, 1254 (Fed. Cir. 2015) (quoting In re Petering, 301 F.2d 676, 681(CCPA 1962)) and MPEP 2131.02.
Regarding the recitation of wherein (i) the α casein protein is lacking or substantially reduced in post-translational modification (PTM) relative to a native α casein protein, or (ii) the κ casein protein is lacking or substantially reduced in PTM relative to a native κ casein protein, or both (i) and (ii) in claim 95, Pandya teaches the recombinantly produced α casein protein and the recombinantly produced κ casein protein lack and/or expresses the same glycosylation and phosphate groups as compared to native α casein protein and native κ casein protein and is silent with respect to post-translational modifications in this embodiment (paragraphs [0026], [0110], [0193], and [0194]).
Regarding the recitation of wherein the ratio of recombinant α casein protein to recombinant κ casein protein is from 1:1 to 3:1 in claim 95, Pandya teaches the casein composition comprises about 12-15 g/L of α-S1-casein, about 3-4 g/L of α-S2-casein, and about 2-4 g/L of κ-casein, which is equivalent to a ratio of α-S1-casein : κ-casein of about 3-7.5 : 1 (calculated from 12-15 g/L / 2-4 g/L) and a ratio of α-S2-casein : κ-casein of about 0.75-2 : 1 (calculated from 3-4 g/L / 2-4 g/L) (paragraph [0230]). The ranges of Pandya overlap with the presently claimed range. As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
With respect to claim 96, Pandya is relied upon for the teaching of the composition of claim 95 as addressed above.
Regarding the recitation of wherein the ratio of recombinant α casein protein to recombinant κ casein protein is from 1:1 to 2:1 in claim 96, Pandya teaches the casein composition comprises about 12-15 g/L of α-S1-casein, about 3-4 g/L of α-S2-casein, and about 2-4 g/L of κ-casein, which is equivalent to a ratio of α-S1-casein : κ-casein of about 3-7.5 : 1 (calculated from 12-15 g/L / 2-4 g/L) and a ratio of α-S2-casein : κ-casein of about 0.75-2 : 1 (calculated from 3-4 g/L / 2-4 g/L) (paragraph [0230]). The ranges of Pandya overlap with the presently claimed range. As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (The prior art taught carbon monoxide concentrations of "about 1-5%" while the claim was limited to "more than 5%." The court held that "about 1-5%" allowed for concentrations slightly above 5% thus the ranges overlapped.)
With respect to claim 97, Pandya is relied upon for the teaching of the composition of claim 95 as addressed above.
Regarding the recitation of wherein (a) the PTM is phosphorylation and wherein the α casein protein is dephosphorylated α-S1 casein, (b) the PTM is glycosylation and wherein the κ casein protein is deglycosylated κ casein, or (c) the α casein protein is dephosphorylated α-S1 casein and the κ casein protein is deglycosylated κ casein in claim 97, Pandya teaches the prepared recombinant κ casein protein lacks glycosylation and the prepared recombinant α-S1 casein protein lacks phosphate groups as compared to animal-derived casein protein and is silent with respect to post-translational modifications in this embodiment (paragraphs [0026], [0110], [0114], and [0194]).
With respect to claim 98, Pandya teaches a yogurt composition (paragraphs [0002], [0035], [0042], and [0229]).
Regarding the recitation of formed from the liquid colloid of claim 95 in claim 98, Pandya teaches a liquid colloid (milk substitute product) as addressed above in claim 95, and the milk substitute product can be incorporated into various food applications including yogurt (paragraphs [0228]-[0229]).
With respect to claim 99, Pandya is relied upon for the teaching of the composition of claim 76 as addressed above.
Regarding the recitation of wherein the PTM is phosphorylation, and wherein the α casein protein is dephosphorylated α-S1 casein in claim 99, Pandya teaches the prepared recombinant α-S1 casein protein lacks phosphate groups as compared to animal-derived casein protein and is silent with respect to post-translational modifications in this embodiment (paragraphs [0026], [0110], [0114], [0193], and [0194]).
With respect to claim 100, Pandya is relied upon for the teaching of the composition of claim 76 as addressed above.
Regarding the recitation of wherein the PTM is glycosylation, and wherein the κ casein protein is deglycosylated κ casein in claim 100, Pandya teaches the prepared recombinant κ casein protein lacks glycosylation as compared to animal-derived casein protein and is silent with respect to post-translational modifications in this embodiment (paragraphs [0026], [0110], [0114], [0193], and [0194]).
With respect to claim 101, Pandya is relied upon for the teaching of the composition of claim 76 as addressed above.
Regarding the recitation of wherein the α casein protein is dephosphorylated α-S1 casein and the κ casein protein is deglycosylated κ casein in claim 101, Pandya teaches the prepared recombinant κ casein protein lacks glycosylation and the prepared recombinant α-S1 casein protein lacks phosphate groups as compared to animal-derived casein protein (paragraphs [0026], [0110], [0114], [0193], and [0194]).
Response to Arguments
Applicant’s remarks filed February 2, 2026 are acknowledged.
Applicant’s arguments have been fully considered, but they are unpersuasive.
Applicant argues the Examples of the specification demonstrate the unexpected result that show criticality in the claimed ratio of α casein protein to κ casein protein in an “edible composition comprising a coagulated colloid, wherein the coagulated colloid comprises α casein protein and κ casein protein associated in a micellar form, wherein at least one of the α (alpha) casein protein and κ (kappa) casein protein is recombinantly produced” in which one or both of the α casein protein and κ casein protein are lacking or substantially reduced in PTM. Pandya fails to recognize the criticality of the ratio of α casein protein to κ casein protein had unexpected effects on the cheese yield when one or both of the α casein protein and κ casein protein are lacking or substantially reduced in PTM (P7-P12).
Examiner disagrees. The features described by Applicant are indeed expected in view of Pandya. As previously addressed, Pandya teaches a cheese composition comprising two types of casein proteins, such as α casein and κ casein, that are recombinantly produced, in a micellar formation, and lack post-translational modification (paragraphs [0026], [0035], [0057], [0068], [0110], [0114], [0129], [0193], [0194], [0230], and [0253]). Pandya also teaches the composition comprises about 12-15 g/L of α-S1-casein, about 3-4 g/L of α-S2-casein, and about 2-4 g/L of κ-casein, which is equivalent to a ratio of α-S1-casein : κ-casein of about 3-7.5 : 1 (calculated from 12-15 g/L / 2-4 g/L) and a ratio of α-S2-casein : κ-casein of about 0.75-2 : 1 (calculated from 3-4 g/L / 2-4 g/L) (paragraph [0230]). Thus, Pandya explicitly achieves a ratio of α casein protein to κ casein protein the overlaps with the presently claimed range as demonstrated above, and one of ordinary skill in the art would reasonably conclude that the same beneficial results as described by Applicant would be attained therein, absent a showing of evidence to the contrary. Applicant is reminded that any differences between the claimed invention and the prior art may be expected to result in some differences in properties. The issue is whether the properties differ to such an extent that the difference is really unexpected. In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986) (differences in sedative and anticholinergic effects between prior art and claimed antidepressants were not unexpected). In other words, the unexpectedness must be sufficient “to secure the validity of the claims in suit.” Syntex (U.S.A.) LLC v. Apotex, Inc., 407 F.3d 1371, 1381 (Fed. Cir. 2005) and MPEP 716.02.
Conclusion
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/T.L.M/Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793
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