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 .
Status of the Application
Receipt of the Request for Continued Examination (RCE under 37 CFR 1.114) and the Response and Amendment filed 14 July 2025 is acknowledged.
Applicant has overcome the following by virtue of amendment of the specification and claims: (1) the objections to the specification and claims have been withdrawn; (2) the 112(b) rejection of claim 15 has been withdrawn.
The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 1, 4-19, and 21
Withdrawn claims: None
Previously canceled claims: None
Newly canceled claims: 2-3 and 20
Amended claims: 1, 17
New claims: 21
Claims currently under consideration: 1, 4-19, and 21
Currently rejected claims: 1, 4-19, and 21
Allowed claims: None
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 14 July 2025 has been entered.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1, 4-8, 11-13, and 15 are rejected under 35 U.S.C. 103 as being unpatentable in view of Jacobson (US 2006/0062885).
Regarding claim 1, Jacobson teaches an imitation cheese composition comprising:
(a) a dairy cheese comprising from 10 to 20% by weight of the composition – “The acidified imitation cheese composition preferably includes a cheese-derived component of no more than about 15% by weight of the composition”, wherein the cheese-derived component includes any type of cheese ([0042]).
(b) an analogue cheese comprising from 80 to 90 weight percent of the pizza cheese composition – The remaining fraction (i.e., greater than about 85%) of the imitation cheese product of Jacobson represents the claimed analogue cheese comprising 80-90 % by weight of the pizza cheese.
The analogue cheese comprising:
(i) fat ranging from 15-35% by weight – fat should be present in an amount of most preferably 10-25% by weight of the composition ([0052]), and the fat may be extracted from a non-dairy source (e.g., vegetable oils ([0051])).
(ii) casein protein in an amount less than 3% by weight of the analogue cheese – the preferred protein may include casein ([0049]) in an amount not greater than 3% by weight of the composition ([0046]).
(iii) guar gum ([0022]); and
(iv) a hydrocolloid other than guar gum ranging from 10-25% by weight of the analogue cheese – hydrocolloids may be present in the composition in an amount of about 0.01-40% by weight ([0038]).
wherein a ratio of a weight of guar gum divided by a weight of casein protein is at least 1.4 to 2.8 – This ratio is achievable given the cited ranges for the weight percentages of casein protein and guar gum. For example, 2% by weight of guar gum and 1.43% by weight of casein protein is a ratio of 1.4, and 2% by weight of guar gum and 0.71% by weight of casein protein is a ratio of 2.8. These amounts are all within the ranges of hydrocolloids, including guar gum, and casein disclosed by Jacobson ([0022], [0038], [0046]).
The claimed ranges overlap the disclosed ranges, and regarding components of the claimed analogue cheese, the disclosed ranges also overlap 80-90% of the claimed ranges, reflecting the amount of those ingredients in the composition as a whole. In a case where the claimed ranges overlap or lie inside ranges disclosed by the prior art, a prima facie case of obviousness exists, MPEP §2144.05.
Regarding claim 4, Jacobson teaches the composition of claim 1.
Jacobson also teaches that casein ([0049]) may be present in an amount not greater than 3% by weight of the composition ([0046]). The claimed range of 0.25-2.0% by weight lies inside the disclosed range of not greater than 3% by weight. In a case where the claimed ranges overlap or lie inside ranges disclosed by the prior art, a prima facie case of obviousness exists, MPEP §2144.05.
Regarding claim 5, Jacobson teaches the composition of claim 1.
Jacobson also teaches that the casein protein is less than 1.5 percent of the analogue cheese – casein ([0049]) may be present in an amount not greater than 1% by weight of the composition ([0046]).
Regarding claim 6, Jacobson teaches the composition of claim 1.
Jacobson also teaches a composition having moisture in an amount that is at least about 50% by weight of the composition (claim 11). The claimed range of 30-60% by weight overlaps with the disclosed range of at least about 50%. In a case where the claimed ranges overlap or lie inside ranges disclosed by the prior art, a prima facie case of obviousness exists, MPEP §2144.05.
Regarding claim 7, Jacobson teaches the composition of claim 1.
Jacobson also teaches that “chemical emulsifiers are present in the composition in an amount of up to about 5% by weight of the composition” ([0054]). The claimed range of 1-4% by weight of emulsifying salt lies inside the disclosed range of 0-5%. In a case where the claimed ranges overlap or lie inside ranges disclosed by the prior art, a prima facie case of obviousness exists, MPEP §2144.05.
Regarding claim 8, Jacobson teaches the composition of claim 7.
The ratio of the weight of emulsifying salt divided by the weight of casein protein using the weight percentages of emulsifying salt and casein protein disclosed in Jacobson can range from 2 to 4. For example, 2% by weight of emulsifying salt and 0.5% by weight of casein protein is a ratio of 4, and 2% by weight of emulsifying salt and 1% by weight of casein protein is a ratio of 2. These amounts are all within the ranges disclosed by Jacobson ([0046], [0054]).
In a case where the claimed ranges overlap or lie inside ranges disclosed by the prior art, a prima facie case of obviousness exists, MPEP §2144.05.
Regarding claim 11, Jacobson teaches the composition of claim 1.
Jacobson also teaches a “cheese-derived component” that includes any type of cheese ([0042]), which includes mozzarella.
Regarding claim 12, Jacobson teaches the composition of claim 1.
Jacobson also teaches that the dairy cheese comprises less than 12 weight percent of the pizza cheese composition and the analogue cheese comprises greater than 88 weight percent of the pizza cheese composition – Jacobson teaches “a cheese-derived component of no more than about 15% by weight of the composition”, wherein the cheese-derived component includes any type of cheese ([0042]). The claimed range of less than 12% lies inside the disclosed range of no more than about 15%. In a case where the claimed ranges overlap or lie inside ranges disclosed by the prior art, a prima facie case of obviousness exists, MPEP §2144.05.
By default, the greater than 88% by weight of analogue cheese component as recited in the instant claim is also obvious.
Regarding claim 13, Jacobson teaches the composition of claim 1.
The phrase, “wherein the pizza cheese composition exhibits a textural firmness of at least 1800 g after being subjected to a Freeze/Thaw Evaluation Cycle” is directed toward an unrecognized latent property of the composition after the process of freezing and thawing the composition.
As provided by MPEP § 2145(II), “[m]ere recognition of latent properties in the prior art does not render nonobvious an otherwise known invention. In re Wiseman, 596 F.2d 1019, 201 USPQ 658 (CCPA 1979)”, and “‘[t]he fact that appellant has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious.' Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985)”.
Therefore, where the composition of claim 1 is obvious in view of Jacobson, claim 13 is also obvious.
Regarding claim 15, Jacobson teaches the composition of claim 1.
Jacobson also teaches a packaged food product in that the imitation cheese composition can be packaged by methods that will “result in a commercially sterile finished product suitable for consumer consumption” ([0067]).
Claims 9-10, 14, and 16-19 are rejected under 35 U.S.C. 103 as being unpatentable over Jacobson (US 2006/0062885) in view of Merrill et al. (WO 2005/107487).
Regarding claim 9, Jacobson teaches the composition of claim 1.
Jacobson also teaches that hydrocolloids other than guar gum may be used in the imitation cheese composition ([0022]) and that starch may be used to further aid in water management ([0057]).
Jacobson does not discuss the amount of starch used as a weight percent of the hydrocolloid other than guar gum.
However, Merrill teaches the use of starch and a gum in the slurry component of a blended cheese composition ([0019]). The starch is present in an amount ranging from 0.5-35% by weight of the slurry ([0022]), and is 100% (i.e., >75%) by weight of the hydrocolloid other than guar gum.
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to modify Jacobson with the teachings of Merrill to use starch as the sole, or predominant, hydrocolloid other than guar gum. Since Jacobson teaches (i) that alternative hydrocolloids may be used other than guar gum, and (ii) that starch in particular may impart additional benefits to the imitation cheese composition pertaining to water management, yet does not specify whether the alternative hydrocolloids may be used in combination with guar gum or simply as a substitute, one of ordinary skill in the art would have been motivated to consult and incorporate the teachings of Merrill for clarification regarding the use of mixtures of hydrocolloids in blended cheese compositions. One of ordinary skill in the art would have had a reasonable expectation of success for doing so because Merrill states that a variety of soft or firm/semi-hard blended cheeses are further disclosed, and those blended cheeses have one or more of (i) a starch concentration of about 0.5-26 wt %, (ii) a dairy solid concentration of about 0.5-35 wt %, or (iii) a gum or cellulose concentration of about 0.5-20 wt %, and that some cheeses have two or all three of these characteristics ([0021]). This indicates that guar gum and starch may be used in combination, in the disclosed amounts, to modulate the firmness of the imitation cheese product. Modification of Jacobson with the teachings of Merrill in this way would yield the predictable result of further thickening or stabilizing an imitation cheese composition to give a desired hardness to the composition.
Regarding claim 10, Jacobson teaches the composition of claim 1.
Jacobson also teaches:
fat ranges from 20 to 30 weight percent of the analogue cheese – fat is present most preferably 10-25% by weight of the composition ([0052])).
the amount of casein protein is less than 2% by weight of the analogue cheese – the preferred protein may include casein ([0049]) in an amount preferably, less than 1% by weight of the composition ([0046]).
the hydrocolloid other than guar gum ranging from 12-17% by weight of the analogue cheese – hydrocolloids may be present in the composition in an amount of about 0.01-40% by weight ([0038]).
the analogue cheese further comprises an emulsifying salt ranging from 1-4% by weight of the analogue cheese – “chemical emulsifiers are present in the composition in an amount of up to about 5% by weight of the composition” ([0054]).
The claimed ranges overlap the disclosed ranges, and regarding components of the claimed analogue cheese, the disclosed ranges also overlap 80-90% of the claimed ranges, reflecting the amount of those ingredients in the composition as a whole. In a case where the claimed ranges overlap or lie inside ranges disclosed by the prior art, a prima facie case of obviousness exists, MPEP §2144.05.
Jacobson specifies a composition having moisture in an amount greater than about 55% by weight, not water ranging from 33-55% by weight of the analogue cheese.
However, Merrill teaches a water content of the analogue cheese slurry that is adjusted to 25-65% by weight (claim 7) as a way to regulate the “stability, shelf life, and the ability to slice, shred, and dice the final cheese product” ([0042]).
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to modify the analogue cheese of Jacobson with the teachings of Merrill regarding the moisture content. One of ordinary skill in the art would have been motivated to produce a variety of imitation cheeses in order to provide a range of cost-effective alternatives to natural cheese. Among those varieties is a low-moisture variety of mozzarella cheese for use in making popular food items, such as pizza. A low moisture content helps make the cheese more amenable to shredding, more shelf-stable, and also prevents the pizza or other dough-based food product from becoming soggy during baking. As Jacobson specifies a moisture content of greater than 55% by weight of their analogue cheese, one of ordinary skill in the art would have been motivated to consult Merrill for guidance on producing low-moisture imitation cheeses. One of ordinary skill in the art would have had a reasonable expectation of success for doing so because Merrill states that mozzarella cheese has a moisture content of more than 52%, but not more than 60% by weight, and “low-moisture mozzarella” cheeses have a moisture content of more than 45%, but not more than 52% by weight ([0029]). Reducing the water content of the composition of Jacobson with the teachings of Merrill in this way would yield the predictable result of an imitation cheese composition with the desired features of increased stability and ease of processing by slicing, shredding, or dicing.
Regarding claim 14, Jacobson teaches the composition of claim 1.
Jacobson also teaches that the composition is sufficiently firm such that it can be at least one of sliced, cut, shredded, or grated ([0020]).
Jacobson does not teach that the composition is diced.
However, Merrill discloses that the blended cheese composition can be provided in a variety of different forms, including loaves and comminuted forms, such as diced, shredded, and other forms known in the art ([0150]).
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to further modify the loaves of the cheese composition taught by Jacobson by applying the known technique of dicing the imitation cheese product as disclosed in Merrill. One of ordinary skill in the art would have been motivated to consult Merrill in order to improve the convenience of the imitation cheese product by providing it to consumers in a wider variety of forms, including diced, and to facilitate packaging, shipping, and direct consumption by the end consumer. One of ordinary skill in the art would have had a reasonable expectation of success for doing so because Merrill discloses that their imitation cheese product is provided in a variety of comminuted forms, including diced, shredded, and other forms known in the art.
Regarding claim 16, Jacobson teaches the composition of claim 15.
Jacobson does not teach that the packaged food product is a frozen food product selected from the group consisting of a pizza, a pizza roll, and a pizza pocket.
However, Merrill teaches that the blended cheese composition can be incorporated into or onto food products ([0153]). Examples include, “cereal-based products…pizzas, burritos, dough-enrobed sandwiches, hand-held foods…” ([0152]). Pizza rolls and pizza pockets are considered to be dough-enrobed sandwiches and/or hand-held foods. Furthermore, Merrill teaches that, “the resulting food product can optionally be refrigerated or frozen for future sale or use.” ([0156]).
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to modify Jacobson with the teachings of Merrill to produce a frozen food product with the imitation cheese composition, which could include a pizza, a pizza roll, and/or a pizza pocket as these are common uses for cheeses, particularly mozzarella. One of ordinary skill in the art would have been motivated to consult Merrill in order to expand the applications of the imitation cheese composition beyond its loaf or comminuted forms. Production of food items that incorporate the imitation cheese composition would provide consumers with additional options for purchasing the imitation cheese composition and thereby increase overall sales. One of ordinary skill in the art would have had a reasonable expectation of success for doing so because Merrill teaches that the cheese blends can be incorporated into essentially any baking application that involves the use of cheese and can be incorporated into a wide variety of food products, for instance, in a variety of convenience foods, including entrees, snack foods and appetizers ([0151]).
Regarding claim 17, Jacobson teaches an imitation cheese composition comprising:
(a) a dairy cheese comprising from 10 to 20% by weight of the composition – “The acidified imitation cheese composition preferably includes a cheese-derived component of no more than about 15% by weight of the composition”, wherein the cheese-derived component includes any type of cheese ([0042], lines 1-5).
(b) an analogue cheese comprising from 80 to 90 weight percent of the pizza cheese composition – The remaining fraction (i.e., greater than about 85%) of the imitation cheese product of Jacobson represents the claimed analogue cheese comprising 80-90 % by weight of the pizza cheese.
The analogue cheese comprising:
(i) fat ranging from 15-35% by weight – fat should be present in an amount of preferably 10-25% by weight of the composition ([0052]), and the fat may be extracted from a non-dairy source (e.g., vegetable oils ([0051])).
(ii) casein protein in an amount less than 3% by weight of the analogue cheese – the preferred protein may include casein ([0049]) in an amount not greater than 3% by weight ([0046]).
(iii) guar gum ([0022]); and
(iv) a hydrocolloid other than guar gum ranging from 10-25% by weight of the analogue cheese – hydrocolloids other than guar gum may be used in the imitation cheese composition ([0022]), hydrocolloids may be present in the composition in an amount of about 0.01-40% by weight ([0038]). Jacobson also teaches that starch may be used to further aid in water management ([0057]).
(vi) an emulsifying salt – “chemical emulsifiers are present in the composition in an amount of up to about 5% by weight of the composition” ([0054]).
wherein a ratio of a weight of guar gum divided by a weight of casein protein is at least 1.4 to 2.8 – This ratio is achievable given the cited ranges for the weight percentages of casein protein and guar gum. For example, 2% by weight of guar gum and 1.43% by weight of casein protein is a ratio of 1.4, and 2% by weight of guar gum and 0.71% by weight of casein protein is a ratio of 2.8. These amounts are all within the ranges of hydrocolloids, including guar gum, and casein disclosed by Jacobson ([0022], [0038], [0046]).
and a ratio of a weight of emulsifying salt divided by a weight of casein protein ranges from 2 to 4 – The ratio of the weight of emulsifying salt divided by the weight of casein protein using the weight percentages of emulsifying salt and casein protein disclosed in Jacobson can range from 2 to 4. For example, 2% by weight of emulsifying salt and 0.5% by weight of casein protein is a ratio of 4, and 2% by weight of emulsifying salt and 1% by weight of casein protein is a ratio of 2. These amounts are all within the ranges disclosed by Jacobson ([0046], [0054]).
The claimed ranges overlap the disclosed ranges, and regarding components of the claimed analogue cheese, the disclosed ranges also overlap 80-90% of the claimed ranges, reflecting the amount of those ingredients in the composition as a whole. In a case where the claimed ranges overlap or lie inside ranges disclosed by the prior art, a prima facie case of obviousness exists, MPEP §2144.05.
Jacobson does not discuss the amount of starch used as a weight percent of the hydrocolloid other than guar gum, and does not disclose (v) water ranging from 33 to 55 weight percent of the analogue cheese.
However, Merrill teaches the use of starch and a gum in the slurry component of a blended cheese composition ([0019]). The starch is present in an amount ranging from 0.5-35% by weight of the slurry ([0022]), and is 100% (i.e., >75%) by weight of the hydrocolloid other than guar gum.
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to modify Jacobson with the teachings of Merrill to use starch as the sole, or predominant, hydrocolloid other than guar gum. Since Jacobson teaches (i) that alternative hydrocolloids may be used other than guar gum, and (ii) that starch in particular may impart additional benefits to the imitation cheese composition pertaining to water management, yet does not specify whether the alternative hydrocolloids may be used in combination with guar gum or simply as a substitute, one of ordinary skill in the art would have been motivated to consult and incorporate the teachings of Merrill for clarification regarding the use of mixtures of hydrocolloids in blended cheese compositions. One of ordinary skill in the art would have had a reasonable expectation of success for doing so because Merrill states that a variety of soft or firm/semi-hard blended cheeses are further disclosed, and those blended cheeses have one or more of (i) a starch concentration of about 0.5-26 wt %, (ii) a dairy solid concentration of about 0.5-35 wt %, or (iii) a gum or cellulose concentration of about 0.5-20 wt %, and that some cheeses have two or all three of these characteristics ([0021]). This indicates that guar gum and starch may be used in combination, in the disclosed amounts, to modulate the firmness of the imitation cheese product. Modification of Jacobson with the teachings of Merrill in this way would yield the predictable result of further thickening or stabilizing an imitation cheese composition to give a desired hardness to the composition.
Jacobson specifies a composition having moisture in an amount greater than about 55% by weight, not water ranging from 33-55% by weight of the analogue cheese as in part (v) of the instant claim 17.
However, Merrill teaches a water content of the analogue cheese slurry that is adjusted to 25-65% by weight (claim 7) as a way to regulate the “stability, shelf life, and the ability to slice, shred, and dice the final cheese product” ([0042]).
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to modify the analogue cheese of Jacobson with the teachings of Merrill regarding the moisture content. One of ordinary skill in the art would have been motivated to produce a variety of imitation cheeses in order to provide a range of cost-effective alternatives to natural cheese. Among those varieties is a low-moisture variety of mozzarella cheese for use in making popular food items, such as pizza. A low moisture content helps make the cheese more amenable to shredding, more shelf-stable, and also prevents the pizza or other dough-based food product from becoming soggy during baking. As Jacobson specifies a moisture content of greater than 55% by weight of their analogue cheese, one of ordinary skill in the art would have been motivated to consult Merrill for guidance on producing low-moisture imitation cheeses. One of ordinary skill in the art would have had a reasonable expectation of success for doing so because Merrill states that mozzarella cheese has a moisture content of more than 52%, but not more than 60% by weight, and “low-moisture mozzarella” cheeses have a moisture content of more than 45%, but not more than 52% by weight ([0029]). Reducing the water content of the composition of Jacobson with the teachings of Merrill in this way would yield the predictable result of an imitation cheese composition with the desired features of increased stability and ease of processing by slicing, shredding, or dicing.
Regarding claim 18, Jacobson and Merrill teach the composition of claim 17.
Jacobson also teaches:
fat ranges from 20 to 30 weight percent of the analogue cheese – fat is present most preferably 10-25% by weight of the composition ([0052])).
the amount of casein protein is less than 2% by weight of the analogue cheese – the preferred protein may include casein ([0049]) in an amount preferably, less than 1% by weight of the composition ([0046]).
the hydrocolloid other than guar gum ranging from 12-17% by weight of the analogue cheese – hydrocolloids may be present in the composition in an amount of about 0.01-40% by weight ([0038]).
the analogue cheese further comprises an emulsifying salt ranging from 1-3% by weight of the analogue cheese – “chemical emulsifiers are present in the composition in an amount of up to about 5% by weight of the composition” ([0054]).
The claimed ranges overlap the disclosed ranges, and regarding components of the claimed analogue cheese, the disclosed ranges also overlap 80-90% of the claimed ranges, reflecting the amount of those ingredients in the composition as a whole. In a case where the claimed ranges overlap or lie inside ranges disclosed by the prior art, a prima facie case of obviousness exists, MPEP §2144.05.
Regarding claim 19, Jacobson and Merrill teach the composition of claim 17.
The phrase, “wherein the pizza cheese composition exhibits a textural firmness of at least 1800 g after being subjected to a Freeze/Thaw Evaluation Cycle” is directed toward an unrecognized latent property of the composition after the process of freezing and thawing the composition.
As provided by MPEP § 2145(II), “[m]ere recognition of latent properties in the prior art does not render nonobvious an otherwise known invention. In re Wiseman, 596 F.2d 1019, 201 USPQ 658 (CCPA 1979)”, and “‘[t]he fact that appellant has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious.' Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985)”.
Therefore, where the composition of claim 17 is obvious in view of the cited prior art, claim 19 is also obvious.
Claim 21 is rejected under 35 U.S.C. 103 as being unpatentable over Jacobson (US 2006/0062885) in view of Merrill et al. (WO 2005/107487) as applied to claim 17 above, and in further view of Frazier et al. (US 2015/0335039 A1)
Regarding claim 21, Jacobson and Merrill teach the composition of claim 17.
The cited prior art does not discuss that the starch is a non-pregelatinized modified starch.
However, Frazier teaches cheese compositions that may include non-pregelatinized modified starch (Abstract). As such, Frazier teaches that non-pregelatinized modified starch is suitable for the purpose of making cheese compositions.
MPEP § 2144.07 states, “The selection of a known material based on its suitability for its intended use support[s] a prima facie obviousness determination”. Since Frazier teaches that the claimed non-pregelatinized modified starch is a suitable ingredient for use in making cheese compositions, and Jacobson teaches the use of a starch in the imitation cheese composition ([0057]), it would have been prima facie obvious to use a non-pregelatinized modified starch in the imitation cheese composition of Jacobson as modified by Merrill.
Response to Arguments
Claim Rejections – 35 U.S.C. § 103: Applicant’s arguments filed on 14 July 2025 have been fully considered, but they are not persuasive.
Applicant first stated that they continue to disagree with the interpretation and application of Jacobson, incorporating by reference the arguments advanced in Applicant’s Non-Final Office Action dated December 11, 2024. Applicant argued that the Office Action did not establish by prima facie evidence that Jacobson discloses or suggests a pizza cheese composition that includes an analogue cheese having (1) casein protein and (2) guar gum, where (3) a ratio of a weight of guar gum divided by a weight of casein protein is at least 1.0. Applicant argued that the Office is interpreting Jacobson to infer teachings not disclosed by the reference which, without the benefit of impermissible hindsight, would not have been recognized by a person of ordinary skill in the art because Jacobson does not recognize or disclose combining casein protein and guar gum, much less coordinating the relative amounts of the two components as disclosed and claimed (p. 7, ¶ 5 – p. 8 ¶2). Applicant also asserted that there is no overlapping range of the relative amounts of guar gum to casein taught by Jacobson. The reference does not recognize or convey the concept of controlling the relative amount of guar gum to casein. Further, the disclosed individual ranges are so broad (e.g., 40 wt% or more hydrocolloid while casein is to "be avoided") as to be non-limiting (p. 8, ¶ 3).
Applicant’s arguments have again been considered, but they are not persuasive. Jacobson discloses the use of casein in the composition – the preferred protein may include casein ([0049]) in an amount not greater than 3% by weight of the composition ([0046]). Jacobson discloses that greater than 10% casein may produce an objectionable texture ([0049]), but no more than 6% is acceptable ([0050]), and amounts not greater than 3% by weight and not greater than 1% by weight are also disclosed ([0046]). As independent claim 1 recites no more than 3 weight percent casein protein, the disclosed ranges support a prima facie case of obviousness.
Jacobson discloses the use of guar gum in the imitation cheese composition ([0022]). Disclosure of guar gum in the list of hydrocolloids disclosed by Jacobson meets the limitation of independent claim 1, which only requires guar gum, in any amount ranging from miniscule to about 75% of the claimed analogue cheese based on minimum amounts of the other claimed ingredients and a ratio of guar gum to casein protein of at least 1.0. It would have been obvious for one of ordinary skill in the art to have selected any one or more of the hydrocolloids disclosed by Jacobson, including guar gum. Since Jacobson discloses guar gum and other hydrocolloids in a range of 0.01-40 weight percent of the composition and casein protein in an amount of up to 6 weight percent of the composition, Jacobson also discloses an embodiment where the amount of guar gum and casein protein are present at a ratio of at least 1.0, whether by design or not. MPEP § 2144.01 states, “[I]n considering the disclosure of a reference, it is proper to take into account not only specific teachings of the reference but also the inferences which one skilled in the art would reasonably be expected to draw therefrom." In re Preda, 401 F.2d 825, 826, 159 USPQ 342, 344 (CCPA 1968)”. One of ordinary skill in the art can reasonably infer the disclosure of a ratio of guar gum to casein protein where guar gum and casein protein are disclosed obvious ingredient choices in preparing an imitation cheese product as taught by Jacobson. As the claimed ranges overlap with the disclosed ranges of the guar gum and casein protein, a prima facie case of obviousness exists per MPEP 2144.05(I). Since the claimed amounts would have been obvious, the claimed ratio would have been obvious as well.
In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971). Where Jacobson discloses obvious ranges of hydrocolloids, including guar gum, and casein protein, Jacobson implicitly discloses a ratio of guar gum to casein protein. The overlapping ranges of the ingredients render the claimed ratio obvious.
Applicant amended claims 1 and 17 to recite a ratio of a weight of guar gum divided by a weight of casein protein is with a range from 1.4 to 2.8. Applicant asserted that this amendment focuses on an embodiment of the invention found to exhibit unexpected results. Applicant asserted that the claimed range represents a “sweet spot” ratio wherein the textural firmness of the analogue cheese increases, and was found by the Applicant to decrease at ratios outside the claimed range (p. 9, ¶ 2 – p. 10).
Applicant’s assertion of unexpected technical results is acknowledged. Applicant’s argument has been considered, but it is not found to be persuasive. MPEP § 2145 states, “If a prima facie case of obviousness is established, the burden shifts to the applicant to come forward with arguments and/or evidence to rebut the prima facie case. See, e.g., In re Dillon, 919 F.2d 688, 692, 16 USPQ2d 1897, 1901 (Fed. Cir. 1990) (en banc)”, and “[r]ebuttal evidence may include evidence of ‘secondary considerations,’ such as ‘commercial success, long felt but unsolved needs, [and] failure of others.’ Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 4459, 467. See also, e.g., In re Piasecki, 745 F.2d 1468, 1473, 223 USPQ 785, 788 (Fed. Cir. 1984) (commercial success). Rebuttal evidence may also include evidence that the claimed invention yields unexpectedly improved properties or properties not present in the prior art. Rebuttal evidence may consist of a showing that the claimed compound possesses unexpected properties. Dillon, 919 F.2d at 692-93, 16 USPQ2d at 1901. A showing of unexpected results must be based on evidence, not argument or speculation. In re Mayne, 104 F.3d 1339, 1343-44, 41 USPQ2d 1451, 1455-56 (Fed. Cir. 1997)”. However, as provided by MPEP § 2145(II), “[m]ere recognition of latent properties in the prior art does not render nonobvious an otherwise known invention. In re Wiseman, 596 F.2d 1019, 201 USPQ 658 (CCPA 1979)”, and “‘[t]he fact that appellant has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious.’ Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985)”. Furthermore, “[e]vidence of unexpected results must be weighed against evidence supporting prima facie obviousness in making a final determination of the obviousness of the claimed invention. In re May, 574 F.2d 1082, 197 USPQ 601 (CCPA 1978).” See MPEP § 716.02(c)(I). “‘Expected beneficial results are evidence of obviousness of a claimed invention, just as unexpected results are evidence of unobviousness thereof.; In re Gershon, 372 F.2d 535, 538, 152 USPQ 602, 604 (CCPA 1967)”. See MPEP § 716.02(c)(II).
“Whether the unexpected results are the result of unexpectedly improved results or a property not taught by the prior art, the ‘objective evidence of nonobviousness must be commensurate in scope with the claims which the evidence is offered to support.’ In other words, the showing of unexpected results must be reviewed to see if the results occur over the entire claimed range. In re Clemens, 622 F.2d 1029, 1036, 206 USPQ 289, 296 (CCPA 1980)”. See MPEP § 716.02(d).
In the present case, Applicant’s evidence is not commensurate in scope with the claimed invention. While at first glance the evidence provided appears to support an assertion of unexpected results of increasing the textural firmness of the pizza cheese composition comprising a weight ratio of guar gum to casein protein between 1.4 and 2.8, there are several factors contributing to the scope of the claimed invention being much broader than the embodiments supported by Applicant’s evidence. The examples provided in the specification comprise approximately 10% low fat mozzarella cheese, 47 wt% water, 20 wt% oil, 12 wt% hydrocolloids, 1.2% emulsifying salts, with varying levels of casein and guar gum (instant specification [0069]). The claims are broader than embodiments supported by the data in that 10 to 20% of any dairy cheese may be used, water is from 33 to 55 wt% (claims 10 and 17) or unspecified, fat is from 15 to 35 wt% (claims 1 and 17) or from 20 to 30 wt% (claims 10 and 18), hydrocolloids are 10 to 25 wt% (claims 1 and 17) or 12 to 17 wt% (claims 10 and 18), and emulsifying salts are 1 to 4 wt% (claim 10), 1 to 3 wt% (claim 18), or unspecified. The claimed amount of casein protein is less than 3%, with no minimum amount required. No amount of guar gum is claimed, and it is only required that the claimed guar gum:casein ratio of 1.4 to 2.8 is met. This being the case, the scope of the claims includes embodiments where infinitesimal amounts of casein and guar gum are present in the range of claimed ratios, yet no effect of the ingredients, let alone their ratio, could be exerted on the composition. It should be noted that these examples of differences in scope are not an exhaustive list. The data provided by Applicant are not commensurate in scope with the claimed invention because it cannot be ascertained whether the alleged unexpected result occurs over the entire claimed ranges and combinations of the claimed ingredients from the examples provided, and none of the claims are directed toward the specific embodiment provided by any of the examples. In order for the alleged unexpected results to overcome the prima facie case of obviousness presented and maintained herein, the scope of the claims must be narrowed such that the Applicant’s evidence is commensurate.
For these reasons, the rejection of claims 1 and 17 is maintained.
Accordingly, the rejections of dependent claims 4-16 and 18-19 are also maintained. Claims 2-3 and 20 are cancelled. New claim 21 is rejected as presented hereinabove.
Conclusion
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/JAMES P. SHELLHAMMER/Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793