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 Response and Amendment after Non-Final Office Action filed 7 April 2026 is acknowledged.
The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 1, 4-13, 15-19, and 21-22
Withdrawn claims: None
Previously canceled claims: 2-3 and 20
Newly canceled claims: 14
Amended claims: None
New claims: 21
Claims currently under consideration: 1, 4-13, 15-19, and 21-22
Currently rejected claims: 1, 4-13, 15-19, and 21-22
Allowed claims: None
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, 16-19, and 22 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 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.
Regarding claim 22, Jacobson and Merrill teach the composition of claim 17.
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.
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 7 April 2026 have been fully considered, but they are not persuasive.
Applicant first argued that Jacobson, alone or in combination with the other cited references, fails to disclose or suggest the features of the claims, and the Office Action did not set forth a prima facie case of obviousness for at least 1) the claimed pizza cheese composition formed from a dairy-cheese fraction and an analogue cheese fraction in recited proportions, and 2) the claimed guar gum:casein ratio of 1.4-2.8 (p. 6, ¶¶ 3-4). Applicant argued that Jacobson’s optional cheese-derived component is not disclosed as a claimed dairy-cheese component, and is broadly defined as to include not only “any type of cheese”, but also food grade materials obtained from processing cheese (p. 7, ¶ 2). Applicant argued that Jacobson does not teach a pizza cheese comprising a dairy-cheese component and an analogue cheese component, but instead only teaches a single imitation cheese material (Id.).
Applicant’s arguments have been considered, but they are not persuasive. Applicant is reminded that the claimed invention is the final composition, and in the final composition, the dairy cheese and the analogue cheese are formed into a homogeneous mixture wherein the dairy cheese and analogue cheese cannot be differentiated. The claimed ingredients are therefore considered in their respective amounts relative to the final composition.
Applicant discloses that the pizza cheese composition is typically a homogeneous mixture of the dairy cheese and the analogue cheese:
Paragraph [0060] of the instant specification states:
A pizza cheese composition according to disclosure may be manufactured by incorporating an analogue cheese composition as described herein with one or more dairy cheeses, e.g., to impart one or more cheese flavors to the finished product. The analogue cheese may be combined with the dairy cheese and a solid state, e.g., by mixing solid particles of the analogue cheese with solid particles of the dairy cheese. More typically, however, the dairy cheese may be incorporated into the analogue cheese during production when the analogue cheese is in a molten or liquidous state, thereby becoming compositionally dispersed throughout the analogue cheese to form a resultant pizza cheese that is a homogeneous blend of the dairy cheese component and the analogue cheese component.
Paragraph [0020] of the instant specification states:
The addition of the dairy cheese component to the pizza cheese composition can change the characteristics of the pizza cheese as compared to if the pizza cheese were otherwise entirely formulated from the analogue cheese. As a result, the functional properties of the cheese, such as freeze/thaw stability, may be impacted not only by the composition of the analogue cheese but also the relative amount of the dairy cheese combined with the analogue cheese to form the resultant pizza cheese composition. The amount of guar gum desirably added to the analogue cheese may therefore be affected not only by the reduced level of casein protein utilized in the analogue cheese but also by the amount of dairy cheese used to arrive at a pizza cheese composition exhibiting targeted freeze/thaw stability.
These passages from the instant specification indicate that in a typical embodiment, the dairy cheese and the analogue cheese are combined into one homogeneous “pizza cheese” composition. The freeze/thaw stability would only be impacted by the dairy cheese if it was blended with the analogue cheese in such a way that the composition of the dairy cheese altered the composition of the analogue cheese (e.g., in a homogeneous blend) since separate solid particles of dairy cheese and analogue cheese would maintain their respective functional characteristics. Indeed, Example 1 in paragraph [0069] of the instant specification makes evident that the dairy cheese (mozzarella) is homogeneously melted together with the analogue cheese ingredients using a double auger cheese cooker. The claims do not specify that the analogue cheese and dairy cheese are combined separately and mixed in a solid state, making them differentiable in the final product. As such, the claimed invention encompasses a homogeneous imitation cheese composition. Therefore, the homogeneous imitation cheese composition disclosed by Jacobson teaches the invention as claimed.
Further regarding the dairy cheese component, the Examiner directs Applicant to paragraph [0042] of Jacobson, which discloses that the “imitation cheese composition preferably includes a cheese-derived component in an amount of no more than about 15% by weight of the composition. The term “cheese-derived component” as used herein includes any type of cheese, as defined in 21 C.F.R. § 133…as well as food grade components obtained through the reduction, distillation, enzymatic (or fermentation) processing, or other chemical processing of such cheese or cheeses.” Jacobson therefore establishes that the “cheese-derived component” may be a cheese itself, and includes any type of cheese. This disclosure makes a dairy cheese an obvious ingredient choice at least based on suitability for its intended use in an imitation cheese product. 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”. The disclosed amount of “no more than about 15% by weight of the composition” overlaps the claimed range of from 10-20% by weight of the pizza cheese, and the upper limit of the range (i.e., 15% by weight) falls squarely in the middle of the claimed range. Therefore, a prima facie case of obviousness exists per MPEP § 2144.05(I).
Applicant further argued that Claim 1 requires that the analogue cheese includes “a hydrocolloid other than guar gum ranging from 10-25 weight percent of the analogue cheese”, and that Jacobson’s broad disclosure that total hydrocolloid content may range from about 0.1 wt% to about 40 wt% of the composition does not satisfy the claim requirement because the disclosure concerns the total hydrocolloid in the single imitation cheese composition, not the amount of a hydrocolloid other than guar gum specifically in analogue-cheese component (p. 7, ¶ 3).
Applicant’s argument has been considered, but it is not persuasive. As described above, the final claimed composition is not limited to separate dairy cheese and analogue cheese components, but also includes a homogeneous mixture of those components. In such a homogeneous mixture, theamount of hydrocolloid other than guar gum ranges from 8-22.5 weight percent (80-90 % of 10-25 wt%) of the final composition. Since Jacobson discloses guar gum and other hydrocolloids in a range of 0.01-40 weight percent of the composition, even removing the requisite amount of guar gum to satisfy the claim (8.4 wt% guar gum in the case of a ratio of guar gum:casein of 2.8 and 3 wt% casein protein) still leaves at 8-22.5 wt% hydrocolloid other than guar gum.
Applicant further argued that the Office Action did not set forth a prima facie case of obviousness for 2) the claimed guar gum:casein ratio of 1.4-2.8 (p. 6, ¶ 4). Applicant argued that the reasoning that Jacobson implicitly discloses a ratio of guar gum to casein protein is legally and factually insufficient (p. 7, final ¶). Applicant argued that Jacobson does not teach using guar gum together with casein in a coordinated way at all—guar gum appears only as one item in a long list of possible hydrocolloids, casein also appears only as one item in a list of possible proteins, and Jacobson does not identify guar gum or casein as preferred over other hydrocolloids or proteins and does not describe any technical relationship between the two (p. 8, ¶ 1). Applicant argued that Jacobson never teaches the pairings of guar gum and casein posited in the Office Action to result in the claimed ratio of between 1.4 and 2.8 obtained by choosing one value for guar gum from a broad hydrocolloid disclosure and a value for casein from a different protein disclosure, assuming both are present together, and dividing one selected value by the other (p. 8, ¶ 2). Applicant argued that that such arithmetic reconstruction is based on Applicant’s claim as a roadmap, and obviousness cannot rest on the proposition that a reference could be made to fall within the claim if one were to pick and choose endpoints from unrelated generalized ranges and lists (Id.). Applicant argued that the rejection supplies no articulated reason why a person of ordinary skill in the art would have selected guar gum and casein, and then coordinated those selections so that the guar:casin ratio specifically falls within 1.4-2.8, nor does the rejection identify any technical problem in Jacobson that would have led the skilled person to the ratio (p. 9, ¶ 1). Applicant argued that the rejection proceeds from the premise that because certain individual numerical values can be imagined within broad ingredient disclosures, the claimed ratio is therefore obvious, and that is not the required analysis under § 103; the fact that a ratio is mathematically derivable after the fact does not mean the reference teaches or suggests using that ratio (Id.).
Applicant’s argument has been considered, but it is not persuasive. MPEP § 2123
states, “‘The use of patents as references is not limited to what the patentees describe as their own inventions or to the problems with which they are concerned. They are part of the literature of the art, relevant for all they contain.’ In re Heck, 699 F.2d 1331, 1332-33, 216 USPQ 1038, 1039 (Fed. Cir. 1983) (quoting In re Lemelson, 397 F.2d 1006, 1009, 158 USPQ 275, 277 (CCPA 1968))”.
Jacobson discloses the use of casein in the composition, that it is the preferred protein, contrary to Applicant’s assertion – 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 be present in any amount ranging from miniscule to about 75% of the claimed analogue cheese based on minimum amounts of the other claimed ingredients. 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, at least based on suitability for its intended use in an imitation cheese product. 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 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 1.4-2.8, 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. The reference need not explicitly recognize a ratio of casein protein to guar gum. The reference needs to disclose the ingredients and amounts thereof. A ratio of two components implicitly exists when two components are present in a composition. The ranges of the amounts of the individual components dictate the range of the resulting ratio. Jacobson discloses the claimed ingredients in amounts that render the claimed ratio prima facie obvious per MPEP § 2144.05(I).
It is noted that Applicant argued against the above inference, alleging that it is drawn not from Jacobson’s disclosure, but from Applicant’s claim language (pp. 9-10, bridging ¶). However, the overlap with Applicant’s claim language is to illustrate that the disclosure of Jacobson includes the claimed ratio.
Further, attention is invited to In re Levin, 84 USPQ 232 and the cases cited therein, which are considered in point in fact situation of the instant case. At page 234, the Court stated as follows:
This court has taken the position that new recipes or formulas for cooking food which involve the addition or elimination of common ingredients, or for treating them in ways which differ from the former practice, do not amount to invention, merely because it is not disclosed that, in the constantly developing art of preparing food, no one else ever did the particular thing upon which the applicant asserts his right to a patent. In all such cases, there is nothing patentable unless the applicant by a proper showing further establishes a coaction or cooperative relationship between the selected ingredients which produces a new, unexpected and useful function. In re Benjamin D. White, 17 C.C.P.A. (Patents) 956, 39 F.2d 974, 5 USPQ 267; In re Mason et al., 33 C.C.P.A. (Patents) 1144, 156 F.2d 189, 70 USPQ 221.
Applicant next argued that Applicant’s own specification confirms that the claimed ratio is not arbitrary—The specification experimental data identifies a turning point at a ratio of about 1.4, where firmness behavior changes as the gaur:casein ratio increases with a local maximum around 2.8 (p. 9, ¶ 2). Applicant argued that Jacobson does not recognize the guar:casein ratio as a parameter to be controlled, does not disclose the turning point near 1.4, and does not suggest the local maximum near 2.8 (Id.).
Applicant’s argument has been considered, but it is not persuasive. For Applicant’s argument to have weight, the supporting data should be commensurate in scope with the claims. Insofar as the experimental examples are a proper showing of evidence of unexpected results, “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. 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 at least these reasons, Applicant’s arguments are not persuasive. Accordingly, the rejection of claims 1 and 17 is maintained. The rejections of dependent claims 4-16, 18-19 and 21 are also maintained. New clam 22 is rejected.
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.
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/JAMES P. SHELLHAMMER/Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793
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