DETAILED ACTION
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 05/04/2026 is acknowledged.
The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 1-19, 21-22
Withdrawn claims: 1-13, 18-19, 21
Previously cancelled claims: 20, 23
Newly cancelled claims: None
Amended claims: 14
New claims: None
Claims currently under consideration: 14-17, 22
Currently rejected claims: 14-17, 22
Allowed claims: None
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
Claims 14-17 and 22 are rejected under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
The term “shortly” in claim 14 is a relative term which renders the claim indefinite. The term “shortly” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention.
For the purpose of this examination, the term “shortly” will be interpreted as meaning any amount of time occurring between adding the starter bacteria and coagulant and transferring the goat cheese milk concentrate to a mold.
Claims 15-17 and 22 are rejected by reason of dependency from claim 14.
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 14-15, 17, and 22 are rejected under 35 U.S.C. 103 as being unpatentable over Doring (US 2016/0309733; previously cited) in view of Masotti (Masotti et al., “The evolution of chemical and microbiological properties of fresh goat milk cheese during its shelf life”, 2012, J. Dairy Sci., vol. 95, pages 4760 – 4767; previously cited).
Regarding claims 14, 15, 17, and 22, Doring teaches a process for the preparation of cheese comprising the steps of: (i) subjecting milk to decreaming so as to obtain skim milk; and (ii) subjecting the skim milk to a concentrating step which includes microfiltration [0015], [0024]-[0028], [0033]. Doring discloses that it is known in the art that cheese may be produced from goat milk [0002]. Therefore, it would have been obvious for the milk used in the cheesemaking process of Doring to be goat milk since Doring provides a finite number of identified, predictable solutions with a reasonable expectation of success. MPEP §2143.I.E. It is also known in the art that microfiltration of skim milk produces a whey-reduced milk fraction and a whey fraction when a filter having a particular pore size is used. Since Doring discloses filters having pore sizes which would create such fractions of skim milk (corresponding to 100 nm) [0034], a step of microfiltration to obtain a whey-reduced milk fraction and a whey fraction is rendered obvious.
Doring teaches the process then comprising the steps of: (iii) subjecting the whey-reduced milk fraction to increasing the dry matter solids content so as to form a whey-reduced goat milk concentrate, whereby increasing the dry matter solids content comprises a step selected from the group consisting of adding cream [0029] and removing water through a method selected from a group consisting of evaporation, nanofiltration, and combinations thereof [0033] as recited in present claims 14, 15, and 22. By Doring disclosing the addition of cream to the whey-reduced fat fraction [0029], Doring also discloses that the method comprises a step of (iv) adding fat, before or after increasing the dry matter solids content, so as to obtain a goat cheese milk concentrate (corresponding to cheese-making milk) [0031]. Doring discloses that, after the concentration step, the milk concentrate has a dry matter solids content of about 30 wt.% to about 60 wt.%, such as about 35 wt.% to about 50 wt.% [0039], which falls within the dry matter solids content range recited in step (iii) of present claim 14 and encompasses the dry matter solids content of present claim 17. It would have been obvious to one of ordinary skill in the art to select any portions of the disclosed ranges including the instantly claimed ranges from the ranges disclosed in the prior art references, particularly in view of the fact that; "The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set percentage ranges is the optimum combination of percentages" In re Peterson 65 USPQ2d 1379 (CAFC 2003). Also In re Malagari, 182 USPQ 549,533 (CCPA 1974) and MPEP 2144.05.I.
Doring then teaches that the method then comprises: (v) transferring the goat cheese milk concentrate to a mold (corresponding to filling the cheese base mass into sterile packs) [0040]; and (vi) adding coagulant (corresponding to rennet) and starter bacteria cultures such as lactic acid bacteria or acids themselves to the goat cheese milk concentrate in the mold [0041], [0043]. Starter cultures of acid-producing bacteria will produce acid in the goat cheese milk concentrate; therefore, the addition of starter cultures and/or acid to the goat cheese milk concentrate produces acidified goat cheese milk concentrate. As such, Doring discloses that the process further comprises the step of: (vii) subjecting the goat cheese milk concentrate to acidification so as to provide an acidified goat cheese milk concentrate as recited in present claim 14. Doring also discloses that rennet may be further added to the goat cheese milk concentrate and that rennet causes enzymatic coagulation [0004], [0041]. Doring discloses that the presence of the acid and/or rennet causes coagulation of the goat cheese milk concentrate [0003], [0006] so that when the goat cheese milk is filled into a mold (corresponding to packaging), the goat cheese milk concentrate will coagulate in the mold as recited instep (viii) of present claim 14.
Doring does not disclose that the cheese produced by the method of Doring is a French-type goat cheese wherein the goat milk has a neutral pH of 6.5-7 and the goat milk is acidified to a pH of below 4.8.
However, Masotti teaches that unprocessed goat milk has a pH value of 6.53 (page 4763, column 1, 1st paragraph), which falls within the claimed neutral pH range for the goat milk. Masotti teaches that soft goat cheese is made by coagulation through the addition of lactic bacteria and rennet to goat milk (page 4760, column 2, 1st paragraph). Masotti teaches that the soft goat cheese has a pH of 4.1 to 4.5 (page 4760, column 2, 1st paragraph), which falls within the claimed pH of after acidification.
It would have been obvious for a person of ordinary skill in the art prior to the effective filing date of the present invention to have modified the goat milk and the acidified goat cheese milk concentrate of Doring to have a pH of 6.53 and 4.1-4.5, respectively, as taught by Doring. Since Doring discloses that its cheese may be produced from goat milk [0002], it would have been obvious for the goat milk of Doring to have a pH of 6.53 since Masotti teaches that goat milk has such a pH. Since Doring discloses that the cheese may be a soft goat cheese produced through lactic acid and rennet coagulation [0006], [0041], [0043], but does not disclose a pH obtained by acidification through the acid, a skilled practitioner would have been motivated to consult an additional reference such as Masotti in order to determine a suitable pH for goat cheese produced by such a method. Therefore, the claimed neutral pH of the goat milk and the claimed pH of the acidified goat cheese milk concentrate are rendered obvious.
Since the combination of prior art discloses a soft cheese prepared by goat milk which is produced using a method which renders the claimed method obvious, the prior art encompasses embodiments wherein the prepared cheese is a French-type goat cheese as presently claimed.
Claim 16 is rejected under 35 U.S.C. 103 as being unpatentable over Doring (US 2016/0309733; previously cited) in view of Masotti (Masotti et al., “The evolution of chemical and microbiological properties of fresh goat milk cheese during its shelf life”, 2012, J. Dairy Sci., vol. 95, pages 4760 – 4767; previously cited) as applied to claim 14 above, and further in view of Pazzola (Pazzola et al., “Effect of goat milk composition on cheesemaking traits and daily cheese production”, May 2019, J. Diary Sci., vol. 2, issue 4, pages 3947-3955; previously cited).
Regarding claim 16, modified Doring teaches the invention as described above in claim 14, including coagulation of milk into cheese and the texture of the resulting cheese may be affected by casein (Doring [0003]); and that goat cheese has been gaining popularity due to its sensorial and nutritional value of the goat milk from which the cheese is produced (Masotti, page 4760, column 2, 1st paragraph). Doring also discloses that ingredients may be added to the goat milk concentrate in the form of powder (corresponding to microorganisms and cellulose in powder form) [0042], [0086]. The combination of prior art does not disclose that the dry matter solids content of the whey-reduced milk fraction is increased by adding goat casein powder.
However, Pazzola teaches that high amounts of casein (corresponding to values of casein number higher than 82%) were associated with a general improvement of coagulation ability of goat milk (page 3953, column 2, 3rd paragraph). Pazzola also teaches that the amount of casein influences fat recovery (abstract).
It would have been obvious for a person of ordinary skill in the art prior to the effective filing date of the present invention to have modified the whey-reduced milk fraction in the method of Doring by modifying its casein content as taught by Pazzola. Since Doring discloses that casein is responsible for the coagulating ability of milk and the texture of the resulting cheese [0003]; and Masotti discloses the importance of sensorial and nutritional value of the goat milk from which goat cheese is produced (page 4760, column 2, 1st paragraph), it would have been obvious for a person of ordinary skill to have added goat casein to the goat milk used to produce goat cheese so as to retain more fat in the cheese and modify the coagulation and texture of the cheese as taught by Pazzola (abstract; page 3953, column 2, 3rd paragraph). Since Doring discloses that ingredients may be added in powder form to the goat milk concentrate [0042], [0086], it would have been obvious for a skilled practitioner to have added the goat casein in the form of a powder. Therefore, a step of increasing dry matter solids by adding goat casein powder to the whey-reduced milk fraction as recited in present claim 16 is rendered obvious.
Response to Arguments
Claim Rejections – 35 U.S.C. §103 of claims 14-15, 17, and 22 over Doring and Masotti: Applicant’s amendments and arguments have been fully considered and are considered unpersuasive.
Applicant amended claim 14 to recite that the goat cheese milk concentrate is transferred into a mold in which to coagulate; and that starter bacteria and coagulant is added to the concentrate after the concentrate is transferred to a mold or before the concentrate is added to the mold. Applicant argued that Doring teaches that the goat cheese milk concentrate in the mold is sterile so that the concentrate in the mold is free from living germs (i.e., starter bacteria). Applicant argued that bacteria and enzymes are not capable of operating in the cheese milk concentrate of Doring. Applicant then argued that Doring does not disclose coagulation in packaging as disclosed in [0159] of Doring (Applicant’s Remarks, page 7, 1st paragraph under “Claim Rejections” – page 8, 3rd paragraph).
However, the Examiner points out that Doring discloses the steps of transferring the sterile/pasteurized goat cheese milk concentrate to a mold (corresponding to filling the cheese base mass into sterile packs); and adding coagulant (corresponding to rennet) and starter bacteria cultures such as lactic acid bacteria or acids themselves to the sterile/pasteurized goat cheese milk concentrate in the mold [0032], [0040]-[0041], [0043], thereby rendering claimed steps (v) and (vi) obvious. Doring does not require the sterile/pasteurized goat cheese milk concentrate to be free of germs after filling the concentrate in a mold and adding starter culture/coagulant. Doring also does not require the finished cheese product to be free of germs since Doring discloses a sterile “cheese base mass” [0013]-[0020], [0158], not a “sterile cheese mass”. The Examiner also points out that it is unclear as to why bacteria and enzymes are not capable of operating in the cheese milk concentrate of Doring, especially wherein Doring specifically discloses a cheese milk concentrate is curdled after the addition of a rennet coagulant [0159].
In response to Applicant’s assertion that Doring does not disclose coagulation in packaging as disclosed in [0159] of Doring, the Examiner points out that present claim 14 recites that coagulation occurs in a mold. A mold amounts to nothing more than a container, regardless of whether or not that container is the final packaging for the product. Therefore, even if the container disclosed in [0159] of Doring is not final packaging, the container still qualifies as a mold.
Applicant then stated that the claimed cheese is essentially an acidified type of cheese. Applicant argued that Masotti does not disclose producing the claimed type of cheese in a process wherein the process advantageously allows for acidification and coagulation to take place in a mold (Applicant's Remarks, page 8, 4th-5th paragraphs).
However, Masotti is not cited for its disclosure regarding acidification and coagulation in a mold; Masotti is cited for its disclosure regarding the pH of the cheese milk prior to acidification and regarding the pH of cheese milk after acidification. Doring is cited for teaching acidification and coagulation taking place in a mold as described in the prior art rejection of amended claim 14 and in the responses to Applicant's arguments above. Furthermore, in regard to the prior art teaching "essentially an acidified type of cheese", Doring teaches the addition of coagulant and starter cultures comprising lactic acid bacteria to the cheese milk concentrate [0041]. Lactic acid bacteria in the cheese milk concentrate produces lactic acid which causes acidification of the cheese milk concentrate. Coagulant in the cheese milk concentrate causes coagulation of the cheese milk concentrate. Therefore, the acidification and coagulation of the cheese milk concentrate by the lactic acid bacteria and coagulant produces "essentially an acidified type of cheese" so that the prior art does discloses "essentially an acidified type of cheese".
Applicant then stated that Doring is directed to the production of a sterile cheese mass while Masotti is directed to goat milk cheese. Applicant then argued that a reference directed to a sterile cheese mass cannot be expected to provide any disclosure relating to the microbiological properties of goat milk cheese. For this reason, Applicant argued that it would be illogical for a skilled practitioner concerned with the process of Doring to consult Masotti (Applicant's Remarks, page 9, 1st-2nd paragraphs).
However, the Examiner again points out that Doring discloses a "sterile cheese base mass" "for the production of ready-to-eat cheese products" [0013]-[0020], [0158]. As such, Doring discloses a cheese milk from which cheese may be made by the addition of additives such as starter cultures and coagulant [0040]-[0041]. Doring does not disclose a "cheese mass that is sterile", i.e., a sterile final cheese product, as asserted by the Applicant. Since Doring discloses a cheese product that may be made from goat milk [0002]; and Masotti discloses a cheese product made from goat milk (page 4760, column 2, 1st paragraph), it would be logical for a person guided by the teachings of Doring to consult Masotti.
Since the prior art has been shown to render the present claims obvious and Applicant's arguments have been shown to be unpersuasive, the rejections of the claims are maintained as written herein.
Claim Rejections - 35 U.S.C. §103 of claim 16 over Doring, Masotti, and Pazzola: Applicant's arguments have been fully considered and are considered unpersuasive.
Applicant argued that claim 16 should be patentable by reason of dependency from claim 14 (Applicant's Remarks, page 9, 1st-2nd paragraphs under "Claim 16").
However, claim 14 is shown to be rendered obvious as described in the prior art rejections and in the responses to Applicant's arguments above.
Applicant then argued that the reference to "high values of casein number (>82%)" disclosed in Pazzola does not relate in any way to adding casein powder, but instead relates to the ratio of casein to total protein (Applicant's Remarks, page 9, 3rd paragraph under "Claim 16" - page 10, 4th paragraph).
However, as described above in the prior art rejection of claim 16, Pazzola is cited for its teaching relating to the addition of casein to goat milk to improve the coagulation ability of the goat milk (page 3953, column 2, 3rd paragraph), while Doring is cited for its teaching regarding the added casein being in the form of a powder (corresponding to the ingredients may be added in powder form to the goat milk concentrate) [0042, [0086]. Therefore, the combination of prior art renders adding casein powder obvious.
Since the prior art has been shown to render the present claim obvious and Applicant's arguments have been shown to be unpersuasive, the rejection of the claim is maintained as written herein.
Conclusion
THIS ACTION IS MADE FINAL. 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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/K.P.K./Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791
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