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 .
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 September 19, 2025 has been entered. Claims 1, 3-11, 15-22 and 24 are pending. Claim 1 has been amended. Claim 2 has been canceled. Claims 15-22 and 24 are withdrawn as being directed to a non-elected invention.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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 1, 3, 5-6, and 8-11 are rejected under 35 U.S.C. 103 as being unpatentable over Frazier et al. (US 2015/0335039 A1; Nov. 26, 2015) in view of Hosomi et al. (US 2011/0008502 A1; Jan. 13, 2011) and Al-Assaf et al. (US 2018/0215841 A1; Aug. 2, 2018).
Regarding claim 1, Frazier discloses a reduced casein imitation cheese ([0008], [0033]) comprising gum Arabic ([0010]) that can be present in an amount of 1 to 5 % by weight (fiber in Table 2, wherein the fiber can be gum Arabic [0010]).
While Frazier teaches that gum Arabic can be used to aid in reducing the amount of casein present, Frazier fails to specifically teach that the gum Arabic is grade 2 gum Arabic as claimed.
Hosomi teaches a cheese-like product (e.g. imitation cheese) comprising gum Arabic, wherein the gum Arabic can be derived from Acacia seyal, which is unmodified grade 2 gum Arabic ([0392] and [0663]).
Assaf further teaches that gum Arabic from Acacia seyal has a lower protein content and better emulsion stability among other properties ([0015]). Assaf teaches that unmodified Acacia seyal also has a molecular weight within the claimed range of greater than about 800 kDa ([0102]-[0103]: 8.44x10^5 g/mol = 844 kDa).
As it is well known in the art to use unmodified grade 2 gum Arabic in food, which can be imitation cheese, as taught by Hosomi, and further would have been obvious to use unmodified grade 2 gum Arabic depending on the desired properties as taught by Assaf, it would have been obvious to one of ordinary skill in the art to have the gum Arabic of Frazier comprise unmodified grade 2 gum Arabic in order to provide the imitation cheese of Frazier with better emulsion stability as taught by Assaf.
With respect to the amount of unmodified grade 2 gum Arabic in the imitation cheese, as stated above, Frazier teaches that gum Arabic can be present in an amount of 1 to 5 % by weight (fiber in Table 2, wherein the fiber can be gum Arabic [0010]).
Additionally, as stated above, Hosomi teaches a cheese-like product (e.g. imitation cheese) comprising gum Arabic, wherein the gum Arabic can be derived from Acacia seyal, which is unmodified grade 2 gum Arabic ([0392] and [0663]). Hosomi further teaches that the amount of gum Arabic can be adjusted as appropriate depending on the type of emulsion-like food to be prepared or a material used in combination therewith. Hosomi goes on to states that the gum Arabic is generally present in an amount of 0.05 to 5% by weight of the emulsion-like food ([0393]), which overlaps the claimed range of 0.2% to 0.8% by weight. In the 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 I)
Therefore, it would have been obvious to use unmodified grade 2 gum Arabic in a similar amount as taught by Hosomi in the imitation cheese of Frazier as Hosomi teaches that such amount is suitable for producing an emulsion-like food product, which is the same as Frazier.
Frazier further teaches that the imitation cheese comprises casein in an amount that is below 20% by weight ([0008], Table 2), thus falling within the claimed range of less than about 20% by weight.
With respect to the melt-stretch as claimed, Frazier fails to specifically teach the cheese having at least about 67% of a melt-stretch of a full casein imitation cheese, however, Frazier recognizes the importances of providing a cheese product having desired melt and stretch characteristics. Frazier goes on to state throughout the description that each ingredients selected, and the amount used, contributes to the melt and stretch properties, such as the amount and type of fat and protein ([0009]-[0012]).
Therefore, it would have been obvious to one of ordinary skill in the art to formulate a reduced casein imitation cheese product having a desired melt-stretch by varying the amount and types of ingredients in the cheese product as Frazier clearly teaches that the specific ingredients and amounts contribute to the overall melt and stretch properties. This is merely routine experimentation that is well within the ordinary skill in the art. Frazier further teaches that it is desirable to provide a reduced casein imitation cheese having melt and stretch similar to full casein cheese, and therefore it would have been obvious to formulate the cheese product of Frazier to have at least about 67% of a melt-stretch of a full casein imitation cheese.
Regarding claim 3, Frazier further teaches that the protein from casein is in an amount up to 20% by weight ([0008], Table 2), thus overlapping the claimed range of from about 5% to about 15% by weight. In the 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 I)
Regarding claim 5, as stated above, the combination of the prior art renders obvious the use of grade 2 gum Arabic in Frazier.
The prior art, however, fails to further teach that the unmodified grade 2 gum Arabic has a polyphenol content as claimed.
The examiner notes that as the prior art teaches the use of unmodified grade 2 gum Arabic, the gum Arabic taught by the prior art would necessarily have the claimed polyphenol content.
As stated in In re Best, 562 F.2d 1252, 1255 (CCPA 1977): Where, as here, the claimed and prior art products are identical or substantially identical, or are produced by identical or substantially identical processes, the PTO can require an applicant to prove that the prior art products do not necessarily or inherently possess the characteristics of his claimed product. Whether the rejection is based on "inherency" under 35 U.S.C. § 102, on “prima facie obviousness” under 35 U.S.C. § 103, jointly or alternatively, the burden of proof is the same, and its fairness is evidenced by the PTO’s inability to manufacture products or to obtain and compare prior art products.
In the instant case, the product as claimed is the same as the prior art and therefore would necessarily or inherently possess the characteristics of the claimed product absent a showing otherwise.
Regarding claim 6, Frazier teaches that the imitation cheese further comprises modified starch selected from corn, potato, rice, or tapioca ([0034], [0068], [0085]).
Regarding claim 8, Frazier teaches that the modified starch is present in an amount up to 6% by weight ([0034], [0068], [0085], Table 2), thus overlapping the claimed range of greater than about 5%. In the 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 I)
Regarding claim 9, Frazier teaches that the imitation cheese further comprises an emulsifying salt in an amount up to 5% by weight (Table 2), thus overlapping the claimed range of about 0.1 to about 2%. In the 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 I)
Regarding claim 10, Frazier teaches that the emulsifying salts can be citrate salts, phosphate salts, and mixtures thereof ([0087]).
Regarding claim 11, Frazier teaches that the imitation cheese further comprises a moisture content from 25-50% by weight (Table 2), thus overlapping the claimed range of about 48% to about 52%. In the 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 I)
Claim 4 is rejected under 35 U.S.C. 103 as being unpatentable over Frazier et al. (US 2015/0335039 A1; Nov. 26, 2015), Hosomi et al. (US 2011/0008502 A1; Jan. 13, 2011) and Al-Assaf et al. (US 2018/0215841 A1; Aug. 2, 2018) as applied to claim 1 above, and further in view of Strandholm (US Patent No. 5,068,118; Nov. 26, 1991).
Regarding claim 4, as stated above, Frazier teaches protein from casein, and further teaches a second protein source that is non-casein protein ([0008], Table 2). Frazier, however, fails to specifically teach that the second protein source is a vegetable protein source.
Strandholm discloses an imitation cheese product, and further teaches that protein other than casein protein can be used, such as vegetable protein (col 3 lines 1-20).
As it is well known in the art for imitation cheese products to comprise non-casein protein as taught by both Frazier and Strandholm, and Strandholm further teaches that the other protein source can be vegetable protein, it would have been obvious to one of ordinary skill in the art to have the non-casein protein of Frazier comprise vegetable protein. Doing so would predictably provide a suitable imitations cheese as taught by Strandholm and it would have been obvious to use vegetable protein depending on the desired nutrition of the imitation cheese as vegetable protein is nutritionally different than animal protein and dairy protein.
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Frazier et al. (US 2015/0335039 A1; Nov. 26, 2015), Hosomi et al. (US 2011/0008502 A1; Jan. 13, 2011) and Al-Assaf et al. (US 2018/0215841 A1; Aug. 2, 2018) as applied to claim 1 above, and further in view of Atapattu et al. (US 2013/0243926 A1; Sep. 19, 2013).
Regarding claim 7, Frazier teaches that the imitation cheese further comprises a starch as described above ([0034], [0068], [0085]), but fails to specifically teach that the starch is oxidized starch.
Atapattu teaches an imitation cheese product that can further comprise oxidized starch ([0014]). Atapattu teaches that oxidized starch aids in creating a product that is firm enough for shredding, cubing, or slicing, but would still melt when heated ([0014]).
It would have been obvious to one of ordinary skill in the art for the imitation cheese of Frazier to further include oxidized starch as taught by Atapattu. Doing so would yield the predictable result of ensuring the imitation cheese of Frazier is firm enough for shredding, cubing, or slicing, but would still melt when heated base upon the teachings of Atapattu.
Response to Arguments
Applicant’s arguments with respect to the 103 rejection have been fully considered but were not found persuasive.
Applicant argues that the combination of references does not disclose or suggest using unmodified grade 2 gum Arabic in the amounts claimed to improve melt stretch in a reduced casein imitation cheese.
This is not found persuasive as Frazier teaches the use of gum Arabic in imitation cheese. Hosomi teaches a cheese-like product (e.g. imitation cheese) comprising gum Arabic, wherein the gum Arabic can be derived from Acacia seyal, which is unmodified grade 2 gum Arabic ([0392] and [0663]) Assaf further teaches that gum Arabic from Acacia seyal has a lower protein content and better emulsion stability among other properties ([0015]). Assaf teaches that unmodified Acacia seyal also has a molecular weight within the claimed range of greater than about 800 kDa ([0102]-[0103]: 8.44x10^5 g/mol = 844 kDa).
As it is well known in the art to use unmodified grade 2 gum Arabic in food, which can be imitation cheese, as taught by Hosomi, and further would have been obvious to use unmodified grade 2 gum Arabic depending on the desired properties as taught by Assaf, it would have been obvious to one of ordinary skill in the art to have the gum Arabic of Frazier comprise unmodified grade 2 gum Arabic in order to provide the imitation cheese of Frazier with better emulsion stability as taught by Assaf.
Therefore, the combination of references clearly suggests the use of unmodified grade 2 gum Arabic in imitation cheese as it would have been obvious to substitute one gum Arabic for another as stated above.
The selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination. (“Reading a list and selecting a known compound to meet known requirements is no more ingenious than selecting the last piece to put in the last opening in a jig-saw puzzle.” Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) See also In re Leshin, 227 F.2d 197, 125 USPQ 416 (CCPA 1960) (selection of a known plastic to make a container of a type made of plastics prior to the invention was held to be obvious)) (MPEP 2144.07)
With respect to the imitation cheese having a reduced casein content, Frazier further teaches that the imitation cheese comprises casein in an amount that is below 20% by weight ([0008], Table 2), thus falling within the claimed range of less than about 20% by weight. Frazier teaches that casein can be replaced by additional ingredients, including fiber, which includes gum Arabic.
Even though Frazier might teach a preferred fiber, Frazier still renders obvious the use of gum Arabic in the reduced casein imitation cheese product. As stated in MPEP 2123: A reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill in the art, including nonpreferred embodiments. Merck & Co. v.Biocraft Labs., Inc. 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir. 1989), cert. denied, 493 U.S. 975 (1989). Disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments. In re Susi, 440 F.2d 442, 169 USPQ 423 (CCPA 1971).
With respect to the amount of unmodified grade 2 gum Arabic in the imitation cheese, as stated above, Frazier teaches that gum Arabic can be present in an amount of 1 to 5 % by weight (fiber in Table 2, wherein the fiber can be gum Arabic [0010]). Additionally, as stated above, Hosomi teaches a cheese-like product (e.g. imitation cheese) comprising gum Arabic, wherein the gum Arabic can be derived from Acacia seyal, which is unmodified grade 2 gum Arabic ([0392] and [0663]). Hosomi further teaches that the amount of gum Arabic can be adjusted as appropriate depending on the type of emulsion-like food to be prepared or a material used in combination therewith. Hosomi goes on to states that the gum Arabic is generally present in an amount of 0.05 to 5% by weight of the emulsion-like food ([0393]), which overlaps the claimed range of 0.2% to 0.8% by weight. In the 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 I) Therefore, it would have been obvious to use unmodified grade 2 gum Arabic in a similar amount as taught by Hosomi in the imitation cheese of Frazier as Hosomi teaches that such amount is suitable for producing an emulsion-like food product, which is the same as Frazier.
Applicant further argues that the prior art fails to teach or suggest improved melt-stretch, which does not correlate with improved emulsion properties as taught in the prior art.
This is not found persuasive. The examiner recognizes that Frazier fails to specifically teach the cheese having at least about 67% of a melt-stretch of a full casein imitation cheese, however, Frazier recognizes the importances of providing a cheese product having desired melt and stretch characteristics. Frazier goes on to state throughout the description that each ingredient selected, and the amount used, contributes to the melt and stretch properties, such as the amount and type of fat and protein ([0009]-[0012]).
Therefore, it would have been obvious to one of ordinary skill in the art to formulate a reduced casein imitation cheese product having a desired melt-stretch by varying the amount and types of ingredients in the cheese product as Frazier clearly teaches that the specific ingredients and amounts contribute to the overall melt and stretch properties. This is merely routine experimentation that is well within the ordinary skill in the art.
Frazier further teaches that it is desirable to provide a reduced casein imitation cheese having melt and stretch similar to full casein cheese, and therefore it would have been obvious to formulate the cheese product of Frazier to have at least about 67% of a melt-stretch of a full casein imitation cheese.
For the reasons stated above, the 103 rejections are maintained.
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to STEPHANIE A KOHLER whose telephone number is (571)270-1075. The examiner can normally be reached Monday-Friday 8am-5pm.
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/STEPHANIE A KOHLER/Primary Examiner, Art Unit 1791