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 .
Claims 1-6, 8-14, and 21-22 are pending. Prior objections and rejections not included below are withdrawn in view of Applicant’s arguments and amendments.
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 1-3, 8-9, and 11-14 are rejected under 35 U.S.C. 103 as being unpatentable over Gilmore (US 4199608 A) in view of Masucci (“Emulsion Stability Basics”, Processing Magazine).
Regarding Claim 1, Gilmore teaches an imitation cream cheese (Abstract, Column 1, Line 29) comprising 1-5% protein, 1-4% stabilizing agent, and 8-15% lipid (which is a fat component) (Claim 25), which lie within the claimed ranges. Gilmore teaches the use of emulsifiers (Abstract), which creates emulsions.
Gilmore teaches that the protein may be, e.g. soy protein (Column 6, Line 37), which is plant-based.
Gilmore teaches that the stabilizing agent may be e.g. gums (Column 5, Lines 58-65) or starches (Column 6, Lines 5-6). Gilmore additionally teaches combinations of stabilizing agents (Column 5, Line 65). Gilmore additionally teaches that the starch provides an “improved bodying effect”, which is a thickening effect (Column 6, Line 6-7). Therefore, Gilmore teaches the inclusion of stabilizers and starches (which are thickening agents) for inclusion in the cream cheese product.
Where the amount of stabilizing agent provided by Gilmore is 1-4% is sufficient to provide for both the thickener and starch-based thickening agent of the claim, it would have been obvious to include an amount of both starch and stabilizing agent falling within the claimed ranges (e.g. 1% stabilizer and 1% thickener)
Gilmore does not specify whether the fat in the final cream cheese product is in droplets with a D50 at 40 °C from 1.5-7 micrometers.
However, Masucci teaches that in emulsions, oil droplets size is a result effective variable, where smaller droplets result in increased product stability (Page 6). Additionally, Masucci teaches that once desired product stability is achieved, further reduction in droplet size is unnecessary and a waste of energy (Page 6, Paragraph 3).
Thus, it would have been obvious to one of ordinary skill before the filing date of the claimed invention to modify the process parameters to yield a product with the claimed D50 to achieve a desired product stability. It has long been settled to be no more than routine experimentation for one of ordinary skill in the art to discover an optimum value of a result effective variable. Since Applicant has not disclosed that the specific limitations recited in instant claims are for any particular purpose or solve any stated problem, absent unexpected results, it would have been obvious for one of ordinary skill in the art before the effective filing date of the claimed invention to modify Gilmore to discover the optimum workable ranges of the method disclosed by the prior art by normal optimization procedures known in the art.
Gilmore additionally does not address whether the fat component has a solid fat component at specific temperatures as claimed.
However, Gilmore teaches the use of mixtures of coconut, palm, soybean, olive, and peanut oil (Column 4, Lines 26-33). Gilmore additionally teaches the use of the triglyceride form of these oils (Column 2, Lines 45-50), which are interpreted to have similar physical properties to the oils taught in the instant Specification at [0043]. Since Applicant teaches the use of these oils in the instant Specification, the product of Gilmore is interpreted to have the solid fat content at certain temperatures as claimed.
Regarding Claim 2, Gilmore does not address the D50 value at 40 °C of the cream cheese product. However, Masucci teaches that in emulsions, oil droplets size is a result effective variable, where smaller droplets result in increased product stability (page 6). Additionally, Masucci teaches that once desired product stability is achieved, further reduction in droplet size is unnecessary and a waste of energy (page 6, paragraph 3). Thus, it would have been obvious to one of ordinary skill before the filing date of the claimed invention to modify the process parameters to yield a product with the claimed D50 to achieve a desired product stability. It has long been settled to be no more than routine experimentation for one of ordinary skill in the art to discover an optimum value of a result effective variable. Since Applicant has not disclosed that the specific limitations recited in instant claims are for any particular purpose or solve any stated problem, absent unexpected results, it would have been obvious for one of ordinary skill in the art before the effective filing date of the claimed invention to modify Gilmore to discover the optimum workable ranges of the method disclosed by the prior art by normal optimization procedures known in the art.
Regarding Claim 3, Gilmore does not address the width of the size distribution of the fat component. However, Masucci teaches that emulsions, the tail of a size distribution curve (which is directly related to the width of the distribution) must not extend beyond a critical diameter value, since particles that are too large are not stable (page 9).
Therefore, it would have been obvious to one of ordinary skill before the filing date of the claimed invention to modify the process parameters to yield a product with the claimed width of distribution to ensure a stable product. It has long been settled to be no more than routine experimentation for one of ordinary skill in the art to discover an optimum value of a result effective variable. Since Applicant has not disclosed that the specific limitations recited in instant claims are for any particular purpose or solve any stated problem, absent unexpected results, it would have been obvious for one of ordinary skill in the art before the effective filing date of the claimed invention to modify Gilmore to discover the optimum workable ranges of the method disclosed by the prior art by normal optimization procedures known in the art.
Additionally, given that the prior art is similar to the claimed product, with a similar intended use, composition, and processing, there is an expectation that the product of the prior art have the properties as claimed.
Regarding Claim 8, Gilmore teaches the use of starches as claimed but does not specifically disclose a shear tolerant starch. However, given that Gilmore teaches at Examples 5 that a cream cheese may be made with a stabilizer comprising wheat starch, and further that the cream cheese is made by homogenizing (which involves shearing) at 2,000-5,000 psi, the product of Gilmore is interpreted to include a shear tolerant starch as claimed.
Regarding Claim 9, Gilmore teaches the use of soy protein (Column 6, Line 37).
Regarding Claim 11, Gilmore teaches the use of coconut oil (Column 4, Lines 26-33).
Regarding Claim 12, Gilmore teaches the use of, e.g. carrageenan and guar gum, which are hydrocolloids (Column 5, Lines 60-61).
Regarding Claim 13, Gilmore teaches the use of 1-4% stabilizing agent (Claim 25).
Gilmore teaches that the stabilizing agent may be e.g. gums (Column 5, Lines 58-65) or starches (Column 6, Lines 5-6). Gilmore additionally teaches combinations of stabilizing agents (Column 5, Line 68). Gilmore additionally teaches that the starch provides an “improved bodying effect”, which is a thickening effect (Column 6, Line 6-7). Therefore, Gilmore teaches the inclusion of stabilizers and starches (which are thickening agents) for inclusion in the cream cheese product.
Where the amount of stabilizing agent provided by Gilmore (1-4%) is sufficient to provide for both the thickener and starch-based thickening agent of the claim, it would have been obvious to include an amount of both starch and stabilizing agent falling within the claimed ranges (e.g. 1% stabilizer and 3% thickener)
Regarding Claim 14, Gilmore teaches the use of 8-15% lipid (which is a fat component), (Claim 25), which touches the claimed range. Additionally, the claimed invention teaches “about” 15% fat. Therefore, the office takes the position that not only are the ranges approaching they can also be overlapping. The Applicant’s claimed range is thus obvious over the prior art range. See MPEP 2144.15 I.: Overlapping, Approaching and Similar Ranges, Amounts, and Proportions.
Claims 4 and 5 are rejected under 35 U.S.C. 103 as being unpatentable over Gilmore in view of Masucci as applied to Claim 1, above, and further in view of Yu (“Correlation of Dynamic and Steady Flow Viscosities of Food Materials”, Applied Rheology, May/June 2001).
Regarding Claims 4 and 5, Gilmore teaches an imitation cream cheese as discussed above in regards to Claim 1, but does not discuss a complex viscosity of the product at a frequency of 10 rad/s and a temperature of 25 °C within the range of 400-1200 Pa·s.
However, Yu teaches that for a conventional (dairy) cream cheese product, the complex viscosity at 10 rad/s and a temperature of 30 °C is approximately 1,000 Pa·s (Figure 5, SAOS data).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Gilmore to include the claimed complex viscosity as one having ordinary skill would understand that the goal in formulating a plant-based cream cheese product is to closely mimic the properties of the conventional product, including the complex viscosity. Note that only a small difference in complex viscosity is expected between 25 °C and 30 °C.
Additionally, given that the prior art is similar to the claimed product, with a similar intended use, composition, and processing, there is an expectation that the product of the prior art have the properties as claimed.
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over Gilmore in view of Masucci as applied to Claim 1, above, and further in view of Chen (“Determine Viscoelasticity and Spreadability of Cream Cheese”).
Regarding Claim 6, Gilmore teaches a cream cheese as discussed above in regards to Claim 1, but does not discuss the elastic modulus of the product.
However, Chen teaches that for a conventional (dairy) cream cheese product, the storage modulus (or elastic modulus) at an angular frequency of 10 rad/s and 10 °C is approximately 2,000-6,00 Pa depending on the product type.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Gilmore to include the claimed elastic modulus, as one having ordinary skill would understand that the goal in formulating a plant-based cream cheese product is to closely mimic the properties of the conventional product, including the elastic modulus. Note that only a small difference in elastic modulus is expected between 10 °C and 25 °C.
Additionally, given that the prior art is similar to the claimed product, with a similar intended use, composition, and processing, there is an expectation that the product of the prior art have the properties as claimed.
Claim 10 is rejected under 35 U.S.C. 193 as being unpatentable over Gilmore in view of Masucci as applied to Claim 1, above, further in view of Warsame (“Identification and Quantification of Major Faba Bean Seed Proteins”, DOI: 10.1021/acs.jafc.0c02927)
Regarding Claim 10, Gilmore teaches the use of “any water-dispersible protein” (Column 6, Line 36) but does not specifically teach the use of faba (or fava) bean protein.
Warsame teaches that faba (or fava) bean proteins are soluble in water solutions (Materials and Methods, “Protein Fractionation”).
Thus, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to select fava bean protein as the water-dispersible protein of Gilmore, since Gilmore teaches that any water-dispersible protein is appropriate for the cream cheese product and Warsame teaches that faba bean proteins are water soluble.
Claim 21 is rejected under 35 U.S.C. 193 as being unpatentable over Gilmore in view of Smit-Boer (WO 2012080150 A1) and Masucci.
Regarding Claim 21, Gilmore teaches an imitation cream cheese (Abstract) comprising 1-5% protein, 1-4% stabilizing agent, and 8-15% lipid (which is a fat component) (Claim 25), which lie within the claimed ranges. Gilmore teaches the use of emulsifiers (Abstract), which creates emulsions.
Gilmore teaches that the protein may be, e.g. soy protein (Column 6, Line 37), which is plant-based.
Gilmore teaches that the stabilizing agent may be e.g. gums (Column 5, Lines 58-65), which are hydrocolloids. Gilmore additionally teaches combinations of stabilizing agents (Column 5, Line 65), such as gums and cellulose.
Smit-Boer teaches the use of amylomaltase treated starches to form thermoreversible gels (Page 5, Line 20). Smit-Boer teaches that these starches may be used in lieu of hydrocolloids or emulsifiers (Page 1, Lines 8-9). in the production of, e.g. spreadable cheese (Page 3, Line 25).
Therefore, it would have been obvious to one of ordinary skill in the art before the filing date of the claimed invention to utilize a thermoreversible starch, such as amylomaltase treated starch as taught by Smit-Boer, in the cheese spread of modified Gilmore to replace some amount of the hydrocolloid. Note that Gilmore teaches that the stabilizing agent may be e.g. gums, which are hydrocolloids (Column 5, Lines 58-65) at 1-4% (Claim 25). The selection of a known material based on its suitability for its intended use support a prima facie obviousness determination. See MPEP 2144.07
Where the amount of stabilizing agent provided by Gilmore is 1-4% is sufficient to provide for both the stabilizer and thermoreversible starch of the claim, it would have been obvious to include an amount of stabilizer and thermoreversible starch falling within the claimed ranges (e.g. 1% stabilizer and 1% thermoreversible starch)
Modified Gilmore does not specify whether the fat in the final cream cheese product is in droplets with a D50 at 40 °C from 1.5-7 micrometers.
However, Masucci teaches that in emulsions, oil droplets size is a result effective variable, where smaller droplets result in increased product stability (Page 6). Additionally, Masucci teaches that once desired product stability is achieved, further reduction in droplet size is unnecessary and a waste of energy (Page 6, Paragraph 3).
Thus, it would have been obvious to one of ordinary skill before the filing date of the claimed invention to modify the process parameters to yield a product with the claimed D50 to achieve a desired product stability. It has long been settled to be no more than routine experimentation for one of ordinary skill in the art to discover an optimum value of a result effective variable. Since Applicant has not disclosed that the specific limitations recited in instant claims are for any particular purpose or solve any stated problem, absent unexpected results, it would have been obvious for one of ordinary skill in the art before the effective filing date of the claimed invention to modify Gilmore to discover the optimum workable ranges of the method disclosed by the prior art by normal optimization procedures known in the art.
Gilmore additionally does not address whether the fat component has a solid fat component at specific temperatures as claimed.
However, Gilmore teaches the use of mixtures of coconut, palm, soybean, olive, and peanut oil (Column 4, Lines 26-33). Gilmore additionally teaches the use of the triglyceride form of these oils (Column 2, Lines 45-50), which are interpreted to have similar physical properties to the oils taught in the instant Specification at [0043]. Since Applicant teaches the use of these oils in the instant Specification at [0043], the product of Gilmore is interpreted to have the solid fat content at certain temperatures as claimed.
Regarding Claim 22, Gilmore teaches e.g. soy protein, which is not nut-based (Column 6, Line 37).
Response to Arguments
Applicant’s arguments filed 2/26/2025 have been fully considered but they are not persuasive.
Regarding rejections of Claims 1-3, 8, 9, and 11-4 under 35 U.S.C. 103 (Pages 5-6), Applicant argues that Gilmore teaches glycerol esters derived from the oils and fats of Column 4, Lines 30-33, and therefore the physical properties of the glycerol esters cannot be assumed to be the same as those of the unmodified oils. Applicant additionally argues that the melting points of the glycerol esters are different from the claimed solid fat content, with high melting points “as high as about 120 °F”.
This argument is not convincing. First, Gilmore teaches that the glycol ester composition may comprise around 50% triglyceride (Column 2, Lines 45-50). Note that unmodified liquid oils are understood to be mostly triglyceride, and therefore the mixtures of Gilmore would be understood to have physical properties intermediate of an unmodified liquid oil (i.e. low melting points) and monoglycerides and diglycerides derived from the oils (high melting points). Note that Second, the partial glyceryl esters cited (Column 4, Line 35) have a melting point of “as high as about 120 °F” (emphasis added), which encompasses glyceryl esters mixtures with a lower melting point (such as 105 °F, Column 3, Line 33, or mixtures with an ethoxylated glycerol ester, which has a melting point of 80-90 °F, Column 5, Line 4). Additionally, note that the instant Specification at [0043] teaches a fat component with a high melting point, e.g. palm oil (melting point of 95 °F) and shea butter (melting point of 90 °F). Since Gilmore teaches blends of liquid triglycerides with higher melting point fats, as disclosed in the instant Specification, and additionally, since Gilmore teaches use of the disclosed prior art in a product such as cream cheese (Column 2, Line 29), it would have been obvious to one of ordinary skill before the filing date of the claimed invention to utilize a blend of oils and fats that mimic the properties of cream cheese, including the properties of solid fat content at specific temperatures, as claimed.
Regarding the rejection of Claim 21 under 35 U.S.C. 103, Applicant argues that Smit-Boer is directed to a spreadable gel but does not include hydrocolloids or emulsifiers (Page 1, lines 8-9), as the composition does not include fat or oil components. Applicant argues that since the food system of Smit-Boer is different, with no suggestion of suitability of the thermoreversible starch of Smit-Boer in the system of Gilmore, one of ordinary skill would not be motivated to include the thermoreversible starch of Smit-Boer in the emulsion product of Gilmore.
This argument is not convincing. Smit-Boer teaches that thermoreversible starches may be used in lieu of hydrocolloids or emulsifiers (Page 1, Lines 8-9) in the production of, e.g. spreadable cheese (Page 3, Line 25). Smit-Boer additionally teaches food systems that contain oil or fat, e.g. butter(s) (Page 3, Line 25) and meat spreads (Page 3, Line 28). Since Smit-Boer teaches replacement of hydrocolloids and emulsifiers, and additionally since Smit-Boer teaches the use of thermoreversible starches in food systems such as spreadable cheese, it would have been obvious to utilize a thermoreversible starch, such as amylomaltase treated starch as taught by Smit-Boer, in the cheese spread of modified Gilmore to replace some amount of the hydrocolloid.
Additionally, note that the term “gel” would be understood by one of ordinary skill to be a description of the physical properties of the material. An emulsion or hydrocolloid may be a gel.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DEBORAH LIU whose telephone number is (571)270-5685. The examiner can normally be reached 12-8 Eastern Time.
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/D.L./Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791