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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 10/29/2025 has been entered. Claims 1-6, 8-14, and 21-24 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 Prior objections and rejections not included below are withdrawn in view of Applicant’s arguments and amendments.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 the use of any suitable water-dispersible protein, including e.g. soy protein (Column 6, Line 33-39), 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. (Note that Gilmore teaches the process of Example 3 at Column 11, Line 43 for the production of cream cheese, which includes homogenization at Column 10, Line 23).
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 and 22 are 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).
Claims 1-3, 8-9, 11-14, and 23 are rejected under 35 U.S.C. 103 as being unpatentable over Schelle (US 2020/0323231) in view of Masucci (“Emulsion Stability Basics”, Processing Magazine).
Regarding Claims 1-3, Schelle teaches a dairy analog product [0025] with a cream cheese flavor [0077] and good spreadability [0111], which describes a cream cheese product. The product has 8-16% protein, 8-18% starch, 8-18% plant oil, and 0.2-5% gum, which is a stabilizer [0025]. The amount of protein taught by Schelle touches the claimed range, the amount of starch overlaps the claimed range, and the amount of fat and gum (stabilizer) lies within the claimed range. Note that since Schelle teaches a starch, Schelle therefore teaches a “starch-based thickening agent” as claimed.
Schelle 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, or the width of the oil droplet size distribution.
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 Schelle to discover the optimum workable ranges of the method disclosed by the prior art by normal optimization procedures known in the art.
Schelle additionally does not address whether the fat component has a solid fat component at specific temperatures as claimed.
However, Schelle the use of mixtures of coconut, palm, soybean, and peanut oil [0079-0080]. Since Applicant teaches the use of these oils in the instant Specification at [0043], the product of Schelle is interpreted to have the solid fat content at certain temperatures as claimed.
Regarding Claim 8, Schelle teaches the use of modified starch [0081], which encompasses shear tolerant starch. It would be obvious to one of ordinary skill to select a shear tolerant starch as the starch of Schelle, since modified starches commonly exhibit shear tolerance. Additionally, where Schelle teaches a method for producing an exemplary cheese analog comprising high speed mixing of the starch-containing mixture at e.g. [0130], the starch of Schelle is interpreted to be shear tolerant.
Regarding Claim 9, Schelle teaches the use of soy and pea protein [0075].
Regarding Claim 11, Schelle teaches the use of sunflower [0080] and coconut oil [0079].
Regarding Claim 12, Schelle teaches the use of gellan gum, which is a hydrocolloid (Abstract).
Regarding Claim 13, Schelle teaches the use of 8-18% starch (which overlaps the claimed range) and 0.2-5% gum (which overlaps the claimed range), which is a stabilizer [0025].
The amount of protein taught by Schelle touches the claimed range, the amount of starch overlaps the claimed range, and the amount of fat and gum (stabilizer) lies within the claimed range. Note that since Schelle teaches a starch, Schelle therefore teaches a “starch-based thickening agent” as claimed.
Regarding Claim 14, Schelle teaches 8-18% plant oil, which overlaps the claimed range.
Regarding Claim 23, Schelle teaches embodiments of the cheese which are free of monoglycerides and diglycerides (e.g. [0140]).
Claims 4 and 5 are rejected under 35 U.S.C. 103 as being unpatentable over Schelle 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, Schelle 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 Schelle 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 Schelle 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, Schelle 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 Schelle 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 Schelle 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, Schelle teaches the use of legume proteins [0096] but does not specifically teach the use of faba (or fava) bean protein.
Warsame teaches that faba (or fava) bean proteins are useful for human nutrition (Introduction, Paragraph 1).
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 legume protein of Schelle, since Warsame teaches that fava bean proteins are appropriate for human nutrition. The selection of a known material based on its suitability for its intended use support a prima facie obviousness determination. See MPEP 2144.07
Claims 21, 22, and 24 are rejected under 35 U.S.C. 193 as being unpatentable over Schelle in view of Smit-Boer (WO 2012080150 A1) and Masucci.
Regarding Claim 21, Schelle teaches a dairy analog product [0025] with a cream cheese flavor [0077] and good spreadability [0111], which describes a cream cheese product.
The product has 8-16% protein, 8-18% starch, 8-18% plant oil, and 0.2-5% gum, which is a stabilizer [0025]. The amount of protein taught by Schelle touches the claimed range, the amount of starch overlaps the claimed range, and the amount of fat and gum (stabilizer) lies within the claimed range.
Schelle does not specifically discuss the use of a thermoreversible starch.
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 Schelle to replace some amount of the hydrocolloid. Note that Schelle teaches the use of gums, which are hydrocolloids, at 0.2-5% [0025]. 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 Schelle (0.2-5%) 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)
Schelle 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, or the width of the oil droplet size distribution.
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 Schelle to discover the optimum workable ranges of the method disclosed by the prior art by normal optimization procedures known in the art.
Schelle additionally does not address whether the fat component has a solid fat component at specific temperatures as claimed.
However, Schelle teaches the use of mixtures of coconut, palm, soybean, and peanut oil [0079-0080]. Since Applicant teaches the use of these oils in the instant Specification at [0043], the product of Schelle is interpreted to have the solid fat content at certain temperatures as claimed.
Regarding Claim 22, Schelle teaches e.g. soy protein, which is not nut-based [0075].
Regarding Claim 24, Schelle teaches embodiments of the cheese which are free of monoglycerides and diglycerides (e.g. [0140]).
Response to Arguments
Applicant’s arguments filed 10/29/2025 have been fully considered but they are not persuasive.
Regarding rejections under 35 U.S.C. 103 over Gilmore in view of Smit-Boer, Applicant argues (Pages 5-6 of Remarks) that the teaching of Gilmore regarding the consistency and melting point of the glycerol esters would not lead one of ordinary skill to a fat component have the specific solid fat contents at the disclosed temperatures as claimed. Applicant additionally argues that the claimed solid content properties yield similar behavior to butterfat, which is not taught or suggested by Gilmore.
This argument is not convincing. First, where Gilmore teaches adjustability of the fat component melting point via e.g. selection of fats (Column 4, Line 35), and additionally where Gilmore teaches a product that is intended to closely resemble a conventional dairy product (Column 1, Line 28), it would have been obvious to one of ordinary skill to adjust the melting point of the fats to resemble the fats of a conventional dairy product and therefore arrive at the solid fat content/melting profile as claimed. Second, Gilmore teaches the use of a variety of fats, with melting points ranging from 80 (Column 5, Line 4) to 120 °F (Column 4, Line 35). Examiner notes that the melting point of conventional butterfat is generally understood to be about 99 °F (see evidentiary reference of thinkusadairy.org, “Butter”, Paragraph 1), which lies within the range of fat melting points taught by Gilmore. Additionally, Gilmore teaches blends of liquid triglycerides with higher melting point fats, as disclosed in the instant Specification [0043], and teaches the use of the fats in a cream cheese (Column 2, Line 29) product intended to mimic conventional dairy cream cheese. Gilmore therefore teaches a product similar to the claimed product, with a similar intended use, composition, and processing. Note that where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). "When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not." See MPEP 2112.01 I.
Applicant additionally argues that the selected fat component of the instant Claim has a fat droplet size distribution that enables an opaque appearance and texture similar to a dairy-based cream cheese. Applicant submits that droplet size is not a result effective variable in regards to an opaque appearance at elevated temperatures, and that the combination of oil droplet size along with solid fat content act in conjunction to provide behavior similar to that of a conventional dairy-based cheese.
This argument is not convincing. First, it is not required that the motivation of Masucci in reducing droplet size – e.g. controlling emulsion stability while minimizing energy use– be identical to the motivation of the instant invention (e.g. product opacity). One of ordinary skill would have been able to have adjusted the emulsion oil droplet size to arrive at the claimed size profile through no more than routine experimentation. Second, Applicant has provided no convincing arguments or evidence that the product of the prior art, which comprises the same ingredients as those disclosed in the instant Specification and are used for an identical intended use, would not provide the claimed effect. The burden now falls to the Applicant to show that the fats of modified Gilmore do not have the size profile as claimed.
Applicant additionally argues (Page 7 of Remarks) that Claims 23 and 24 recite a product free of monoglycerides and diglycerides, and Gilmore requires the inclusion of monoglycerides and diglycerides.
Note that Claims 23 and 24 are new Claims, and Gilmore is not relied upon for their rejection.
Conclusion
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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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nikki Dees can be reached at 571-270-3435. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/D.L./Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791
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