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 .
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 25-26 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claim 25 recites the limitation “wherein the product does not include a microorganism” in line 4. There was not adequate written description support at the time of filing for the product to not include a microorganism. The disclosure at the time of filing never explicitly mentions the term “microorganism” or equivalent terms thereof and also does not specifically exclude, implicitly, the presence of a microorganism.
Claim 26 is rejected as being dependent on a rejected base claim.
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 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 of this title, 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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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.
Claims 1-6, 8-12, 15-18, and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Holz-Schietinger et al. US 2015/0305361 in view of Lenhardt et al. US 4,435,438 and Vrljic et al. US 2018/0027851.
Regarding Claim 1, Holz-Schietinger et al. discloses a plant based cheese product (non-dairy cheese replica) (‘361, Paragraph [0012]) comprising a plant prolamin (‘361, Paragraph [0224]) wherein pea prolamins improve the stretchability of the resulting cheese replica and pea prolamins are added in a concentration of 0.1-10% (‘361, Paragraph [0236]), which overlaps the claimed prolamin concentration of 10-30% by weight prolamin. The plant prolamin is combined with a fat (‘361, Paragraph [0227]) wherein the amount of fats influences the cheese properties such as firmness, water retention, oil leakage, meltability, stretching, color, and creaminess (‘361, Paragraphs [0113] and [0198]) wherein 0%-50% by weight is added to the protein solution (‘361, Paragraphs [0114] and [0193]), which encompasses the claimed amount of fat of 0.1-25% by weight fat. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the concentration of prolamin and fat incorporated into the plant based cheese product to fall within the claimed prolamin and fat concentration as taught by Holz-Schietinger et al. since where the claimed concentration of prolamin and fat overlaps prolamin and fat concentration ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Furthermore, differences in the prolamin and fat concentration of the plant based cheese product replica will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such prolamin and fat concentration of the plant based cheese product replica is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). Holz-Schietinger et al. discloses prolamins influencing the stretchability of the imitation cheese (‘361, Paragraph [0236]) and the amount of fats influences the cheese properties such as firmness, water retention, oil leakage, meltability, stretching, color, and creaminess (‘361, Paragraphs [0113] and [0198]). One of ordinary skill in the art would adjust the prolamin amount and fat amount based upon the desired stretchability and the desired firmness, water retention, oil leakage, meltability, color, and creaminess of the plant based cheese product. The plant based cheese also comprises a structural component (coacervates comprising starches) (‘361, Paragraphs [0237]-[0238]) in water to yield a cheese product (‘361, Paragraph [0096]). Applicant discloses that starches are types of thickening and/or gelling agents that are types of a structural component (Specification, Paragraphs [0057]-[0058]). Although Holz-Schietinger et al. is silent regarding the structural component of coacervates comprising starches in the plant based cheese product to be 5-15% by weight of the structural component in water, differences in the structural component concentration of the plant based cheese product replica will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such structural component concentration of the plant based cheese product replica is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). It is noted that the Claim 1 does not specify the particular structural component. One of ordinary skill in the art would adjust the amount of structural component of the coacervates comprising starches within the plant based cheese based upon the desire stretchability of the cheese which stretchability is impacted by the incorporation of coacervates (‘361, Paragraph [0237]).
Holz-Schietinger et al. discloses incorporating sulfur compounds that are important to provide the characteristic flavor to particular cheeses generated in non-dairy medias (‘361, Paragraph [0163]). However, Holz-Schietinger et al. is silent regarding the prolamin of the cheese product being part of a non-covalent network.
Lenhardt et al. discloses a plant based cheese product (imitation cheese or cheese analogue) (‘438, Column 11, lines 42-47) comprising a plant prolamin (dry vegetable protein isolate) (‘438, Column 3, lines 60-68) combined with a fat (‘438, Column 11, lines 23-35) and a structural component (aqueous isolate solution converted into thermoset gelled mass) in water (‘438, Column 4, lines 38-59). Lenhardt et al. further discloses adding a small amount of a water soluble salt of sulfurous acid to enhance the efficacy of the protein extraction and facilitate the procurement of the desired end product wherein the water soluble salt of sulfurous acid effectively reduces the vegetable protein disulfide linkages to thiol groups to permit molecular and intermolecular restructuring of the tertiary and quaternary structure of the protein within the aqueous extract resulting in greater water solubility and reduction in solution viscosity (‘438, Column 7, lines 46-53). Vrljic et al. discloses a plant based cheese product (cheese replica) (‘851, Paragraph [0077]) comprising a plant prolamin (‘851, Paragraphs [0038] and [0118]) combined with a fat (lipids) (‘851, Paragraph [0146]) and a structural component (proteinaceous gel using an agent based on polysaccharides) (‘851, Paragraph [0247]) in water (‘851, Paragraph [0333]) to yield a cheese product wherein the one or more proteins is a heme containing protein that includes any polypeptide that noncovalently binds a heme moiety (‘851, Paragraph [0127]) wherein the gels comprises chemicals that promote formation of intermolecular disulfide cross links between the proteins (‘851, Paragraph [0162]) and the gels are stabilized entirely by hydrophobic interactions between protein molecules (‘851, Paragraph [0156]). Applicant discloses the non-covalent linked network being formed by hydrophobic interactions as opposed to covalent disulfide linkages (Specification, Paragraph [0047]). Therefore, the reduced vegetable protein disulfide linkages of Lenhardt et al. reads on the claimed non-covalent network in view of applicant’s disclosure and the gels that are stabilized entirely by hydrophobic interactions between protein molecules also reads on the claimed non-covalent network in view of applicant’s disclosure.
Holz-Schietinger et al., Lenhardt et al., and Vrljic et al. are all directed towards the same field of endeavor of plant based cheese product comprising plant proteins. It would have been obvious to one of ordinary skill in the art to introduce a non-covalent network by reducing the vegetable protein disulfide linkages as taught by Lenhard et al. and also introduce a non-covalent network by stabilizing gels entirely by hydrophobic interactions between protein molecules as taught by Vrljic et al. since both Lenhardt et al. and Vrljic et al. teaches that it was known and conventional in the imitation cheese art to introduce plant proteins via a non-covalent network to bind the plant proteins together.
Further regarding Claim 1, although Holz-Schietinger et al. modified with Lenhardt et al. and Vrljic et al. does not explicitly state that the ratio of structural component to fat is in the range of about 1:2 to 1:4 resulting in a product that exhibits at least 100% stretch in a linear direction from a resting position without breaking at 50°C, Holz-Schietinger et al. discloses culture parameters being adjusted to alter the stretchability of the plant based cheese product (cheese replica) (‘361, Paragraph [0083]) and the plant based cheese product (cheese replica) being made to form stretchy strings upon heating by using mixtures that comprise isolated purified plant proteins of prolamins and late embryonic stage abundant proteins wherein the addition of prolamins increases stretching (‘361, Paragraph [0234]) and that the structural component (coacervates) influences the stretching properties of the cheese replicas (‘361, Paragraph [0237]). Differences in the ratio of structural component of coacervate to fat and stretchability of the plant based cheese product replica will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such ratio of structural component of coacervate to fat and stretchability of the plant based cheese product replica is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). Holz-Schietinger et al. discloses adjusting the stretchability of the plant based cheese replica product by altering culture parameters (‘361, Paragraph [0083]) of the concentration of prolamins to influence the stretching characteristics of the cheese replica (‘361, Paragraph [0234]) and that the coacervate structural component amount influences the stretching properties of the cheese replicas (‘361, Paragraph [0237]).
Regarding Claim 2, Holz-Schietinger et al. discloses culture parameters being adjusted to alter the stretchability of the plant based cheese product (cheese replica) (‘361, Paragraph [0083]) and the plant based cheese product (cheese replica) being made to form stretchy strings upon heating by using mixtures that comprise isolated purified plant proteins of prolamins and late embryonic stage abundant proteins wherein the addition of prolamins increases stretching (‘361, Paragraph [0234]). Although Holz-Schietinger et al. does not explicitly state that the stretchability of the product is in an amount of about 200% in a linear direction from a resting or baseline position without breaking at 50°C, differences in the stretchability of the plant based cheese product replica will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such stretchability of the plant based cheese product replica is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). Holz-Schietinger et al. discloses adjusting the stretchability of the plant based cheese replica product by altering culture parameters (‘361, Paragraph [0083]) of the concentration of prolamins to influence the stretching characteristics of the cheese replica (‘361, Paragraph [0234]).
Regarding Claim 3, Holz-Schietinger et al. discloses the product exhibiting meltability properties modulated by various combinations of the heat cool method (‘361, Paragraphs [0233] and [0235]) as well as using one or more enzymes in combination with any one of culturing methods and additives to modulate the melting profile (‘361, Paragraph [0176]). Although Holz-Schietinger et al. does not explicitly state that the melting profile is which the tan 6 increases from about 0.2-0.5 to about 2.0 as temperature is increased from room temperature up to about 100°C or a melting profile such that the storage modulus G’ is greater than loss modulus G” and tan sigma (G”/G’) is greater than 0.5 but less than 1.0, differences in the melting profile of the plant based cheese product replica will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such melting profile of the plant based cheese product replica is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). Holz-Schietinger et al. discloses the product exhibiting meltability properties modulated by various combinations of the heat cool method (‘361, Paragraphs [0233] and [0235]) as well as using one or more enzymes in combination with any one of culturing methods and additives to modulate the melting profile (‘361, Paragraph [0176]).
Regarding Claim 4, Holz-Schietinger et al. modified with Lenhardt et al. and Vrljic et al. is silent regarding the product exhibiting a decrease in hardness and loss of shape at a temperature of greater than 20°C as compared to the hardness of the product at 5°C. However, Holz-Schietinger et al. discloses adjusting the firmness of the cheese analog by incorporating transglutaminase (‘361, Paragraphs [0219] and [0226]) and the texture of the cheese replica as well as the melting characteristics or stretchability being modified by adding one or more specific enzymes, proteins, and/or plant based lipids (‘361, Paragraph [0083]) wherein stretching is increased by adding starches (‘361, Paragraph [0238]). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the plant based cheese product of modified Holz-Schietinger et al. and adjust the hardness and loss of shape/firmness at different temperatures since differences in the hardness of the plant based cheese product replica at different temperatures will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such hardness of the plant based cheese product replica at different temperatures is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art would adjust the firmness of the cheese analog as well as the melting characteristics or stretchability being modified by adding one or more specific enzymes, proteins, and/or plant based lipids (‘361, Paragraph [0083]) based upon the desired firmness and stretchability of the plant based cheese product.
Regarding Claim 5, Holz-Schietinger et al. discloses the prolamin being gliadin, hordein, secalin, zein, kafirin, or avenin (‘361, Paragraphs [0105] and [0107]).
Regarding Claim 6, Holz-Schietinger et al. discloses the prolamin comprising zein (‘361, Paragraphs [0020], [0105], and [0107]).
Regarding Claim 8, Holz-Schietinger et al. discloses the fat being sunflower oil, canola oil, safflower oil (‘361, Paragraph [0021]), soybean oil, avocado oil, olive oil (‘361, Paragraph [0113]), corn oil, flaxseed oil, almond oil, coconut oil, peanut oil, and cottonseed oil (‘361, Paragraph [0021]).
Regarding Claim 9, Holz-Schietinger et al. discloses the fat comprising an oleic acid (sunflower oil) content of 5-40% (‘361, Paragraph [0287]), which overlaps the claimed fat oleic acid content of greater than 20%. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the fat concentration of oleic acid in the plant based cheese product of modified Holz-Schietinger et al. and incorporate fat in the form of oleic acid in the concentration as claimed as taught by Heise et al. since where the claimed fat concentration of oleic acid plasticizer overlaps fat in the form of oleic acid concentration ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Furthermore, differences in the fat of the oleic acid concentration of the plant based cheese product replica will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such fat in the form of oleic acid concentration of the plant based cheese product replica is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.).
Regarding Claims 10-11, Holz-Schietinger et al. discloses the structural component comprising a thickening agent and/or a gelling agent (coacervates comprising starches) (‘361, Paragraphs [0237]-[0238]). Applicant discloses that starches are types of thickening and/or gelling agents that are types of a structural component (Specification, Paragraphs [0057]-[0058]).
Regarding Claim 12, Holz-Schietinger et al. discloses the structural component being potato starch (‘361, Paragraph [0102]).
Regarding Claims 15-16, Holz-Schietinger et al. discloses a glycerol plasticizer (‘361, Paragraph [0111]).
Regarding Claims 17-18, Holz-Schietinger et al. discloses the plasticizer being a carboxylic acid of citric acid, malic acid, lactic acid (‘361, Paragraph [0144]), or acetic acid (‘361, Paragraph [0165]).
Regarding Claim 20, Holz-Schietinger et al. discloses the prolamin being partially hydrolyzed (‘361, Paragraphs [0179] and [0181]).
Claims 13 and 21 are rejected under 35 U.S.C. 103 as being unpatentable over Holz-Schietinger et al. US 2015/0305361 in view of Lenhardt et al. US 4,435,438 and Vrljic et al. US 2018/0027851 as applied to claim 1 above in further view of Visser et al. US 2003/0124724.
Regarding Claim 13, Holz-Schietinger et al. discloses adding starches (‘361, Paragraphs [0140] and [0238]). Vrljic et al. discloses components of the consumable being suspended in a gel containing amylopectin starch (‘851, Paragraph [0247]) to thicken the gel (‘851, Paragraph [0212]). However, Holz-Schietinger et al. modified with Lenhardt et al. and Vrljic et al. is silent regarding the structural component of amylopectin starch being a pre-gelatinized high amylopectin starch.
Visser et al. discloses a plant based cheese product (cheese analog) (‘408, Paragraph [0024]) comprising a waxy starch or flour containing at least 95% by weight amylopectin (‘408, Paragraphs [0030] and [0033]), which reads on the claimed high amylopectin starch. Visser et al. also discloses the starches used being pregelatinized (‘724, Paragraph [0162]).
Both modified Holz-Schietinger et al. and Visser et al. are directed towards the same field of endeavor of plant based cheese product analogues made of plant proteins. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the plant based cheese analog of modified Holz-Schietinger et al. and incorporate pregelatinized high amylopectin starch as taught by Visser et al. since the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). Visser et al. teaches that there was known utility in the food art to utilize pregelatinized high amylopectin starch as an ingredient in plant based cheeses.
Regarding Claim 21, Holz-Schietinger et al. discloses the prolamin comprising zein (‘361, Paragraphs [0105] and [0236]).
Further regarding Claim 21, Holz-Schietinger et al. discloses adding starches (‘361, Paragraphs [0140] and [0238]). Vrljic et al. discloses components of the consumable being suspended in a gel containing amylopectin starch (‘851, Paragraph [0247]) to thicken the gel (‘851, Paragraph [0212]). However, Holz-Schietinger et al. modified with Lenhardt et al. and Vrljic et al. is silent regarding the structural component of amylopectin starch being a pre-gelatinized high amylopectin starch.
Visser et al. discloses a plant based cheese product (cheese analog) (‘408, Paragraph [0024]) comprising a waxy starch or flour containing at least 95% by weight amylopectin (‘408, Paragraphs [0030] and [0033]), which reads on the claimed high amylopectin starch. Visser et al. also discloses the starches used being pregelatinized (‘724, Paragraph [0162]).
Both modified Holz-Schietinger et al. and Visser et al. are directed towards the same field of endeavor of plant based cheese product analogues made of plant proteins. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the plant based cheese analog of modified Holz-Schietinger et al. and incorporate pregelatinized high amylopectin starch as taught by Visser et al. since the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). Visser et al. teaches that there was known utility in the food art to utilize pregelatinized high amylopectin starch as an ingredient in plant based cheeses.
Claim 14 is rejected under 35 U.S.C. 103 as being unpatentable over Holz-Schietinger et al. US 2015/0305361 in view of Lenhardt et al. US 4,435,438, Vrljic et al. US 2018/0027851 and Visser et al. US 2003/0124724 as applied to claim 13 above in further view of Yoder et al. US 5,486,375.
Regarding Claim 14, Holz-Schietinger et al. modified with Lenhardt et al. and Vrljic et al. is silent regarding the starch comprising essentially no crosslinking.
Yoder et al. discloses a plant based cheese product (imitation cheese) (‘375, Column 1, lines 9-11) comprising a starch structural component (granular starch providing thickening capability) (‘375, Column 1, lines 43-54) and fat (oil) combined in water (‘375, Column 5, lines 54-65) wherein the starch comprises essentially no crosslinking (‘375, Column 2, lines 44-49).
Both modified Holz-Schietinger et al. and Yoder et al. are directed towards the same field of endeavor of plant based cheese products comprising a starch structural component. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the plant based cheese product of Holz-Schietinger et al. that contains starches (‘361, Paragraph [0238]) and use a non-crosslinked starch as taught by Yoder et al. since the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). Yoder et al. teaches that there was known utility in the food art to utilize a non-crosslinked starch as an ingredient in plant based cheeses.
Claim 19 is rejected under 35 U.S.C. 103 as being unpatentable over Holz-Schietinger et al. US 2015/0305361 in view of Lenhardt et al. US 4,435,438 and Vrljic et al. US 2018/0027851 as applied to claim 1 above in further view of Heise et al. US 2006/0110521.
Regarding Claim 19, Holz-Schietinger et al. discloses a plasticizer (citric acid) (‘361, Paragraph [0144]) wherein the citric acid affects the cheese and butter flavor production. However, Holz-Schietinger et al. modified with Lenhardt et al. and Vrljic et al. is silent regarding the citric acid plasticizer being in an amount of up to 5% by weight.
Heise et al. discloses a plant based cheese product (cheese analog) comprising an oil composition (‘521, Paragraph [0099]) wherein the oil composition comprises a plasticizer (citric acid) (‘521, Paragraph [0098]) in an amount of about 1 wt% to about 5 wt% (‘521, Paragraph [0085]), which falls within the claimed plasticizer concentration of up to 5% by weight.
Both modified Holz-Schietinger et al. and Heise et al. are directed towards the same field of endeavor of cheese analog products comprising citric acid. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the concentration of citric acid in the plant based cheese product of modified Holz-Schietinger et al. and incorporate citric acid plasticizer in the concentration as claimed as taught by Heise et al. since where the claimed concentration of citric acid plasticizer overlaps citric acid plasticizer concentration ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Furthermore, differences in the citric acid plasticizer concentration of the plant based cheese product replica will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such citric acid plasticizer concentration of the plant based cheese product replica is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). Holz-Schietinger et al. discloses the citric acid affecting the cheese and buttery flavor production (‘361, Paragraph [0144]). One of ordinary skill in the art at the time of the invention would modify the citric acid plasticizer concentration of the plant based cheese product of modified Holz-Schietinger et al. based upon the desired cheese flavor.
Claims 25-26 are rejected under 35 U.S.C. 103 as being unpatentable over Swanson et al. US 4,459,313 in view of Holz-Schietinger et al. US 2015/0305361 and Heise et al. US 2006/0110521.
Regarding Claim 25, Swanson et al. discloses a product (cheese analog) (‘313, Column 1, lines 16-19) wherein the product (cheese analog) does not include a microorganism (‘313, Column 7, lines 16-34). The product (cheese analog) comprising a plasticizer (sorbic acid) (‘313, Column 313, Column 8, lines 20-35). It is noted that applicant discloses sorbic acid to be a type of plasticizer (Specification, Paragraph [0066]).
Swanson et al. is silent regarding the product comprising a prolamin and the plasticizer being citric acid in an amount of up to about 5% by weight.
Holz-Schietinger et al. discloses a product (non-dairy cheese replica) comprising a prolamin (‘361, Paragraph [0222]) combined with a plasticizer (citric acid) (‘361, Paragraph [0144]) wherein the citric acid affects the cheese and butter flavor production.
Both Swanson et al. and Holz-Schietinger et al. are directed towards the same field of endeavor of cheese analogs. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the product of Swanson et al. and incorporate a prolamin with citric acid plasticizer as taught by Holz-Schietinger et al. since the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). Holz-Schietinger et al. teaches that there was known utility in the food art to make cheese analogs out of prolamin and citric acid preservative.
Further regarding Claim 25, Swanson et al. modified with Holz-Schietinger et al. is silent regarding the citric acid plasticizer being in an amount of up to 5% by weight.
Heise et al. discloses a plant based cheese product (cheese analog) comprising an oil composition (‘521, Paragraph [0099]) wherein the oil composition comprises a plasticizer (citric acid) (‘521, Paragraph [0098]) in an amount of about 1 wt% to about 5 wt% (‘521, Paragraph [0085]), which falls within the claimed plasticizer concentration of up to 5% by weight.
Both modified Swanson et al. and Heise et al. are directed towards the same field of endeavor of cheese analog products. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the concentration of citric acid in the cheese product of modified Swanson et al. and incorporate citric acid plasticizer in the concentration as claimed as taught by Heise et al. since where the claimed concentration of citric acid plasticizer overlaps citric acid plasticizer concentration ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Furthermore, differences in the citric acid plasticizer concentration of the plant based cheese product replica will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such citric acid plasticizer concentration of the plant based cheese product replica is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). Holz-Schietinger et al. discloses the citric acid affecting the cheese and buttery flavor production (‘361, Paragraph [0144]). One of ordinary skill in the art at the time of the invention would modify the citric acid plasticizer concentration of the cheese product of modified Swanson et al. based upon the desired cheese flavor.
Regarding Claim 26, Holz-Schietinger et al. discloses the prolamin being zein (‘361, Paragraphs [0234] and [0236]).
Response to Arguments
Examiner notes that the previous indefiniteness rejections under 35 USC 112(b) have been withdrawn in view of the amendments.
Applicant's arguments filed August 13, 2025 with respect to the obviousness rejections under 35 USC 103(a) have been fully considered but they are not persuasive.
Applicant argues on Page 6 of the Remarks that Holz-Schietinger does not teach the amount of zein that may be used and does not teach a cheese product in which the formation of a non-covalent prolamin network is considered. Applicant continues that Example 16 of Holz-Schietinger teaches cheese replicas comprising 8% protein with or without 2% pea prolamins but no fat and no structural component while Example 17 teaches similar cheese replicas with 0.5% xanthan gum. Applicant contends that Holz-Schietinger does not teach a cheese replica comprising 5-15% by weight of a structural component, a ratio of structural component to fat in the range of about 1:2 to 1:4 structural component to fat, or a product that exhibits at least 100% stretch in a linear direction from a resting position without breaking at 50°C Applicant argues that Holz-Schietinger teaches the use of a structural component (coacervate) that comprises 4% of a polysaccharide.
Examiner argues Holz-Schietinger et al. discloses an embodiment without using crosslinking enzymes (‘361, Paragraph [0237]). Claim 1 does not specify any particular concentration of zein. Claim 1 recites 10-30% by weight of a plant prolamin. Holz-Schietinger et al. teaches the cheese replica comprising 0.1-10% pea prolamins (‘361, Paragraph [0236]), which overlaps the claimed plant protein concentration of the plant based cheese product of 10-30% by weight of the plant prolamin. Examples 16-17 of Holz-Schietinger et al. are not being relied upon in the rejection. Disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments in view of In re Susi, 440 F.2d 442, 169 USPQ 423 (CCPA 1971) (MPEP § 2123.II.). A reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill in the art in view of Merck & Co. v. Biocraft Labs., Inc. 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir. 1989), cert. denied, 493 U.S. 975 (1989). See also Upsher-Smith Labs. v. Pamlab, LLC, 412 F.3d 1319, 1323, 75 USPQ2d 1213, 1215 (Fed. Cir. 2005) (MPEP § 2123.I.). The Office Action relies upon the cheese replica comprising 0.1-10% pea prolamins (‘361, Paragraph [0236]), which overlaps the claimed plant protein concentration of the plant based cheese product of 10-30% by weight of the plant prolamin. Furthermore, although Holz-Schietinger et al. modified with Lenhardt et al. and Vrljic et al. does not explicitly state that the ratio of structural component to fat is in the range of about 1:2 to 1:4 resulting in a product that exhibits at least 100% stretch in a linear direction from a resting position without breaking at 50°C, Holz-Schietinger et al. discloses culture parameters being adjusted to alter the stretchability of the plant based cheese product (cheese replica) (‘361, Paragraph [0083]) and the plant based cheese product (cheese replica) being made to form stretchy strings upon heating by using mixtures that comprise isolated purified plant proteins of prolamins and late embryonic stage abundant proteins wherein the addition of prolamins increases stretching (‘361, Paragraph [0234]) and that the structural component (coacervates) influences the stretching properties of the cheese replicas (‘361, Paragraph [0237]). Differences in the ratio of structural component of coacervate to fat and stretchability of the plant based cheese product replica will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such ratio of structural component of coacervate to fat and stretchability of the plant based cheese product replica is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). Holz-Schietinger et al. discloses adjusting the stretchability of the plant based cheese replica product by altering culture parameters (‘361, Paragraph [0083]) of the concentration of prolamins to influence the stretching characteristics of the cheese replica (‘361, Paragraph [0234]) and that the coacervate structural component amount influences the stretching properties of the cheese replicas (‘361, Paragraph [0237]). Therefore, these arguments are not found persuasive.
Applicant argues on Page 7 of the Remarks that the amount of 5-15% by weight of structural component is critical to yield a cheese product as claimed comprising a non-covalent prolamin network, i.e. non-crosslinked. Applicant points to Table 10 of the Specification as comparing a cheese sample in accordance with the claimed invention comprising 10-30% by weight prolamin and 5-15% structural component (carbohydrate) was compared to commercial products including both plant based and dairy cheeses. Applicant concludes that the concentration of the structural component is important to ensure the formation of a non-covalent prolamin network within the product as claimed. Applicant alleges that too little or too much inhibits the formation of the non-covalent prolamin network which is important to provide a homogeneous product that maintains stretch but also possesses other properties desirable in a cheese product, namely, a suitable hardness and retains oil. Applicant alleges the multitude of experiments conducted and described in the application determines not only the components to incorporate by the amounts thereof and their relative amounts.
Examiner argues the primary reference of Holz-Schietinger et al. teaches both embodiments involving crosslinking or without crosslinking (‘361, Paragraph [0237]). 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 in view of Merck & Co. v. Biocraft Labs., Inc. 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir. 1989), cert. denied, 493 U.S. 975 (1989). See also Upsher-Smith Labs. v. Pamlab, LLC, 412 F.3d 1319, 1323, 75 USPQ2d 1213, 1215 (Fed. Cir. 2005) (MPEP § 2123.I.). The embodiments disclosed by Holz-Schietinger et al. that uses crosslinking is not being relied upon in the proposed combination. The rejection is based on a combination of the primary reference Holz-Schietinger et al. modified with the secondary references of Lenhardt et al. and Vrljic et al. Lenhardt et al. discloses a plant based cheese product (imitation cheese or cheese analogue) (‘438, Column 11, lines 42-47) comprising a plant prolamin (dry vegetable protein isolate) (‘438, Column 3, lines 60-68) combined with a fat (‘438, Column 11, lines 23-35) and a structural component (aqueous isolate solution converted into thermoset gelled mass) in water (‘438, Column 4, lines 38-59). Lenhardt et al. further discloses adding a small amount of a water soluble salt of sulfurous acid to enhance the efficacy of the protein extraction and facilitate the procurement of the desired end product wherein the water soluble salt of sulfurous acid effectively reduces the vegetable protein disulfide linkages to thiol groups to permit molecular and intermolecular restructuring of the tertiary and quaternary structure of the protein within the aqueous extract resulting in greater water solubility and reduction in solution viscosity (‘438, Column 7, lines 46-53). Vrljic et al. discloses a plant based cheese product (cheese replica) (‘851, Paragraph [0077]) comprising a plant prolamin (‘851, Paragraphs [0038] and [0118]) combined with a fat (lipids) (‘851, Paragraph [0146]) and a structural component (proteinaceous gel using an agent based on polysaccharides) (‘851, Paragraph [0247]) in water (‘851, Paragraph [0333]) to yield a cheese product wherein the one or more proteins is a heme containing protein that includes any polypeptide that noncovalently binds a heme moiety (‘851, Paragraph [0127]) wherein the gels comprises chemicals that promote formation of intermolecular disulfide cross links between the proteins (‘851, Paragraph [0162]) and the gels are stabilized entirely by hydrophobic interactions between protein molecules (‘851, Paragraph [0156]). Applicant discloses the non-covalent linked network being formed by hydrophobic interactions as opposed to covalent disulfide linkages (Specification, Paragraph [0047]). Therefore, the reduced vegetable protein disulfide linkages of Lenhardt et al. reads on the claimed non-covalent network in view of applicant’s disclosure and the gels that are stabilized entirely by hydrophobic interactions between protein molecules also reads on the claimed non-covalent network in view of applicant’s disclosure. In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). Furthermore, applicant’s comparative data in Table 10 of the Specification is not the closest prior art of record. The prior art combination teaches a cheese product as claimed comprising a non-covalent prolamin network, i.e. non-crosslinked, as discussed above. Additionally, applicant admits that Table 10 uses carbohydrate as the structural component. However, Claim 1 does not specify the particular structural component to be carbohydrates. Applicant argues limitations that are not commensurate in scope with Claim 1 since Claim 1 does not specify any carbohydrate material. Additionally, Claim 25 does not specify any structural components to be used. Therefore, these arguments are not found persuasive.
Applicant argues on Page 8 of the Remarks that Yoder relates to a caseinate replacement in a non-prolamin containing product which caseinate replacement is not provided for the purpose of stabilizing the prolamin network and one of skill in the art would not have referred to this reference for guidance as to the amount of structural component for use in a prolamin containing product.
Examiner first notes that Yoder is being relied upon to render obvious the limitations of Claim 14 regarding the starch comprising essentially no crosslinking. Yoder is not being relied upon in the rejections of independent Claims 1 or 25. The primary reference of Holz-Schietinger et al. teaches using a structural component of coacervates with no crosslinking enzymes in which the coacervates influences the stretching properties of the cheese (‘361, Paragraph [0237]). In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). Therefore, this argument is not found persuasive.
Applicant argues on Page 8 of the Remarks that Lenhardt does not mention prolamins and cannot render obvious a non-covalent prolamin network as claimed and that the passage referred to relates to reducing intermolecular complexing to increase water solubility as opposed to forming an intermolecular complex having some viscosity as in the case of the claimed prolamin network.
Examiner argues the primary reference of Holz-Schietinger et al. already teaches prolamins used in a non-dairy cheese replica (‘361, Paragraph [0222]). Lenhardt et al. discloses a plant based cheese product (imitation cheese or cheese analogue) (‘438, Column 11, lines 42-47) comprising a plant prolamin (dry vegetable protein isolate) (‘438, Column 3, lines 60-68) combined with a fat (‘438, Column 11, lines 23-35) and a structural component (aqueous isolate solution converted into thermoset gelled mass) in water (‘438, Column 4, lines 38-59). Lenhardt et al. further discloses adding a small amount of a water soluble salt of sulfurous acid to enhance the efficacy of the protein extraction and facilitate the procurement of the desired end product wherein the water soluble salt of sulfurous acid effectively reduces the vegetable protein disulfide linkages to thiol groups to permit molecular and intermolecular restructuring of the tertiary and quaternary structure of the protein within the aqueous extract resulting in greater water solubility and reduction in solution viscosity (‘438, Column 7, lines 46-53). The dry vegetable protein isolate is a type of plant prolamin. Therefore, this argument is not found persuasive.
Applicant argues on Page 8 of the Remarks that Vrljic relates to meat substitutes which are different from a cheese replica. Applicant contends that Paragraph [0219] of Vrljic discloses an important property of meat is release of fats on cooking while release of fat from cheese is undesirable and that a meat substitute and cheese substitute would be made differently to achieve these different ends. Applicant continues that Paragraph [0247] of Vrljic teaches a proteinaceous gel that may be thickened with an agent based on a polysaccharide or by crosslinking which does not relate to a prolamin non-covalent complex.
Examiner notes that the meat embodiment disclosed in Paragraph [0219] of Vrljic et al. is not cited to or being relied upon in the rejection. Additionally, Paragraph [0247] of Vrljic et al. teaches that enzymes that catalyze reactions leading to covalent crosslinks between proteins can also be used. Disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments in view of In re Susi, 440 F.2d 442, 169 USPQ 423 (CCPA 1971) (MPEP § 2123.II.). The phrase “can be used” indicates that the crosslinking embodiment is possible but not necessary. Furthermore, a reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill in the art in view of Merck & Co. v. Biocraft Labs., Inc. 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir. 1989), cert. denied, 493 U.S. 975 (1989). See also Upsher-Smith Labs. v. Pamlab, LLC, 412 F.3d 1319, 1323, 75 USPQ2d 1213, 1215 (Fed. Cir. 2005) (MPEP § 2123.I.). The actual rejection in the Office Action cites to Vrljic et al. discloses a plant based cheese product (cheese replica) (‘851, Paragraph [0077]) comprising a plant prolamin (‘851, Paragraphs [0038] and [0118]) combined with a fat (lipids) (‘851, Paragraph [0146]) and a structural component (proteinaceous gel using an agent based on polysaccharides) (‘851, Paragraph [0247]) in water (‘851, Paragraph [0333]) to yield a cheese product wherein the one or more proteins is a heme containing protein that includes any polypeptide that noncovalently binds a heme moiety (‘851, Paragraph [0127]) wherein the gels comprises chemicals that promote formation of intermolecular disulfide cross links between the proteins (‘851, Paragraph [0162]) and the gels are stabilized entirely by hydrophobic interactions between protein molecules (‘851, Paragraph [0156]).
Applicant argues on Page 9 of the Remarks that none of the examples in Holz-Schietinger does not teach a cheese replica comprising fat and a structural component wherein Example 8 teaches a replica with protein and fat only and Example 17 teaches a cheese replica with a structural component of xanthan gum and does not include any fat/oil. Applicant continues that Holz-Schietinger does not teach a product exhibiting at least 100% stretch in a linear direction from a resting position without breaking at 50°C. Applicant continues that Holz-Schietinger teaches that prolamin with or without polysaccharide has stretch, discounting the role of polysaccharide to provide or retain stretch.
Examiner argues that Example 8 and Example 17 of Holz-Schietinger et al. are not cited to or relied upon in the rejection. Additionally, Claim 1 does not specify the particular “structural component” that is claimed. The Office Action relies upon the coacervates as reading on the