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 .
Status of the Application
Receipt of the Response and Amendment after Non-Final Office Action filed June 23, 2026 is acknowledged.
The status of the claims upon entry of the present amendments stands as follows:
Pending claims:
1-17, 20-22
Withdrawn claims:
None
Previously canceled claims:
18-19
Newly canceled claims:
None
Amended claims:
10, 20-22
New claims:
None
Claims currently under consideration:
1-17, 20-22
Currently rejected claims:
1-17, 20-22
Allowed claims:
None
Cited Prior Art
The following prior art is cited in the subsequent 35 USC 103 rejections:
Yura (WO 2006/043478 A1);
Streekstra (US 20060110492 A1);
USDA (“Soymilk, original and vanilla, unfortified”, FoodData Central, U.S. Department of Agriculture, NDB No. 16120, published 04/01/2019 [accessed online March 16, 2026]);
Rynk (Rynk, Vitaliy, et al. “Phytase influence on soymilk protein colloid stability studied with thermographic method”, BIO Web Conferences, 64, 01019, published 2023 [accessed online March 16, 2026]);
Bjarnason (US 7,070,953 B1);
Barreca (Barreca, Davide, et al. “Almonds (Prunus Dulcis Mill. D. A. Webb): A Source of Nutrients and Health-Promoting Compounds”, Nutrients, Vol. 12, published March 1, 2020 [accessed online March 26, 2025]);
Nesterenko (Nesterenko, Alla, et al. “Vegetable proteins in microencapsulation: A review of recent interventions and their effectiveness”, Industrial Crops and Products, Vol 42, p. 469-479, published 2013 [accessed online March 26, 2025]); and
Hill (Hill, Ansley. “A Guide to Vegan Cheese: What’s the Best Dairy-Free Option?”, Healthline, published December 6, 2018 [accessed online March 26, 2025]).
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1-5, 8, 14, 15 and 22 are rejected under 35 U.S.C. 103 as being unpatentable over Yura in view of Streekstra as evidenced by USDA and Rynk.
Regarding claim 1, Yura teaches a fermented soymilk with a pleasant taste ([0025]) made by adding phytase to soy milk and reacting (i.e., incubating, [0078]) where the soy milk may have soybean protein added ([0045]).
Yura does not teach wherein the phytase is added in an amount of at least 15 FTU per gram of plant protein or wherein the incubation results in the coagulation of the plant protein.
Regarding wherein the phytase is added in an amount of at least 15 FTU per gram of plant protein, Streekstra teaches of a soymilk comprising phytase, where the soymilk at the end comprises from 500 to 20,000 FTU/kg soymilk ([0054]). Because soymilk is known in the art to comprise 3.27 g protein per 100 g soymilk, the soymilk of Streekstra comprises 15 to 612 FTU phytase/ g soybean protein, which falls within the claimed range of “at least 15 FTU per gram protein”.
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15
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20,000
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100
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3.27
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612
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Evidence to support that soymilk comprises 3.27 g of protein per 100 g soymilk is provided by USDA (p. 1, Table, row 4).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the process of producing soymilk taught by Yura with the addition of higher levels of phytase as taught by Streekstra. One of ordinary skill would have been motivated to make this modification because Streekstra teaches that soymilk comprises high amounts of phytate, and that adding a sufficient amount of phytase reduces the phytate content ([0055]), and that phytate is known to exert a strong negative effect on the absorption of cations, which are minerals ([0004]).
Although the cited prior art does not disclose wherein the incubation results in coagulation of the plant protein, the method of the prior art would inherently result in the coagulation of plant protein. Evidence to support that adding phytase to soymilk would inherently result in the coagulation of proteins is provided by Rynk. Rynk discloses that addition of phytase to soymilk can significantly accelerate its acid coagulation (Abstract), and that most of the phosphates in plant proteins are phytic acid (p. 1, ¶ 4), and that the most important factor for coagulation is the ability of phytic acid (i.e., the protein) to form complexes (p. 2, ¶ 7). Thus, it logically follows that phytase accelerates coagulation of proteins in soymilk.
Regarding claims 2 and 3, Yura also teaches that the invention is soymilk ([0001]), which is understood to be a drink and a known dairy alternative.
Regarding claim 4, Yura also teaches that the invention is a fermented soymilk ([0001]).
Regarding claim 5, Yura also teaches that the invention has a smooth texture ([0025]).
Regarding claim 8, Yura also teaches that the invention is fermented soymilk ([0001]) with smooth texture ([0025]).
Regarding claim 14, Yura also teaches that phytase is added before fermentation ([0078]).
Regarding claim 15, Yura also teaches that the soymilk can be made from powdered soymilk ([0045]).
Regarding claim 22, Yura teaches a fermented soymilk with a pleasant taste ([0025]) made by adding phytase to soy milk and reacting (i.e., incubating, [0078]) where the soy milk may have soybean protein added ([0045]).
Yura does not teach wherein the phytase is added in an amount of at least 15 FTU per gram of plant protein.
However, in the same field of endeavor, Streekstra teaches of a soymilk comprising phytase, where the soymilk at the end comprises from 500 to 20,000 FTU/kg soymilk ([0054]). Because soymilk is known in the art to comprise 3.27 g protein per 100 g soymilk, the soymilk of Streekstra comprises 15 to 612 FTU phytase/ g soybean protein, which falls within the claimed range of “at least 15 FTU per gram protein”.
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3.27
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100
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3.27
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612
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Evidence to support that soymilk comprises 3.27 g of protein per 100 g soymilk is provided by USDA (p. 1, Table, row 4).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the process of producing soymilk taught by Yura with the addition of higher levels of phytase as taught by Streekstra. One of ordinary skill would have been motivated to make this modification because Streekstra teaches that soymilk comprises high amounts of phytate, and that adding a sufficient amount of phytase reduces the phytate content ([0055]), and that phytate is known to exert a strong negative effect on the absorption of cations, which are minerals ([0004]).
The recitation “wherein the method results in a plant protein-based drink with decreased syneresis and decreased beany taste” is interpreted as the intended purpose of performing the method as claimed. Absent evidence to the contrary, the recitation does not result in a manipulative different to the method steps recited in the body of the claim. As such, the recitation does not carry patentable weight.
Claims 6, 16, 17, and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Yura in view of Streekstra as evidenced by USDA and Rynk as applied to claim 1 above, and further in view of Bjarnason.
Regarding claim 6, Yura also teaches that the product is a soymilk ([0001]) that has an increased smooth texture ([0025]).
Yura and Streekstra do not teach using pea protein in the composition.
However, in the same field of endeavor, Bjarnason teaches that vegetable protein for hydrolyzing can be pea protein (col. 7, lines 21-24).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to substitute the soy protein taught by Yura with pea protein as taught by Bjarnason and yield the predictable result of a pea-based yogurt. The claim would have been obvious because one of ordinary skill in the art would have been able to make this simple substitution of one known element for another and yield predictable results to one of ordinary skill in the art, see MPEP §2143(B).
Regarding claim 16, the cited prior art does not teach incubating the solution with at least one starch degrading enzyme.
However, in the same field of endeavor, Bjarnason teaches adding an enzyme such as amylase prior to incubation (col. 6, line 62 – col. 7, line 10; where amylase is well known in the art to be a starch degrading enzyme).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the method of making a soy-based product of Yura with the addition of a starch degrading enzyme taught by Bjarnason. One would be motivated to make this modification because one of ordinary skill would recognize that the addition of a starch degrading enzyme would lead to a protein rich product with readily available sugars.
Regarding claim 17, although the cited prior art does not teach incubating first with at least one starch degrading enzyme and subsequently with phytase, MPEP §214404(IV)(C) states “selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results”, In re Burhans, 154 F.2d 690, 69 USPQ 330 (CCPA 1946) and “Selection of any order of mixing ingredients is prima facie obvious”, In re Gibson, 39 F.2d 975, 5 USPQ 230 (CCPA 1930). Therefore, the process of incubating first with at least one starch degrading enzyme and subsequently with phytase would have been obvious to one of ordinary skill in the art because there is no evidence of unexpected results occurring.
Regarding claim 20, Yura teaches that soymilk treated with enzyme is heat-treated to inactivate the enzyme at a temperature of 110 to 150[Symbol font/0xB0]C ([0019]), which falls within the claimed range of “at least 90[Symbol font/0xB0]C”.
Yura and Streekstra do not teach using pea protein in the composition
Regarding using pea protein in the composition, Bjarnason teaches that vegetable protein for hydrolyzing can be pea protein (col. 7, lines 21-24).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to substitute the soy protein taught by Yura with pea protein as taught by Bjarnason and yield the predictable result of a pea-based yogurt. The claim would have been obvious because one of ordinary skill in the art would have been able to make this simple substitution of one known element for another and yield predictable results to one of ordinary skill in the art, see MPEP §2143(B).
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Yura in view of Streekstra as evidenced by USDA and Rynk as applied to claim 1 above, and further in view of Barreca.
Regarding claim 7, Yura also teaches wherein the product of the present invention is a fermented yogurt with a rich flavor (i.e., a fermented food product; [0079]).
Yura does not teach using almond protein in the composition.
However, in the same field of endeavor, Barreca teaches that almonds contain protein (Abstract).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to substitute the soy protein taught by Yura with almond protein and yield the predictable result of an almond-based yogurt. The claim would have been obvious because one of ordinary skill in the art would have been able to make this simple substitution of one known element for another art recognized function equivalents and yield predictable results to one of ordinary skill in the art, see MPEP §2143(B).
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Yura in view of Streekstra as evidenced by USDA and Rynk as applied to claim 1 above, and further in view of Nesterenko.
Regarding claim 9, Yura also teaches wherein the product of the present invention is a fermented yogurt with a rich flavor (i.e., a fermented food product; [0079]).
Yura does not teach using oat protein in the composition.
However, in the same field of endeavor, Nesterenko teaches that oat protein has a large range of applications in the food sector (p. 475, col. 2, ¶ 4).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to substitute the soy protein taught by Yura with oat protein and yield the predictable result of an oat-based yogurt. The claim would have been obvious because one of ordinary skill in the art would have been able to make this simple substitution of one known element for another recognized function equivalents and yield predictable results to one of ordinary skill in the art, see MPEP §2143(B).
Claims 10, 12, 13, 21 are rejected under 35 U.S.C. 103 as being unpatentable over Bjarnason in view of Streekstra and Yura.
Regarding claim 10, Bjarnason teaches a method of obtaining protein hydrolysates for consumption, including a cheese (Abstract) and that the protein material that is hydrolyzed can be vegetable protein (col. 7, lines 21-25). Bjarnason also teaches adding an enzyme preparation such as phytase prior to incubation with protein containing raw material (col. 6, line 62 – col. 7, line 10). Bjarnason also teaches that the hydrolysate product may be in the form of a gel (col. 5, lines 50-51). Although Bjarnason does not teach the coagulation of proteins by phytase, coagulation would inherently happen during the incubation stage.
Evidence to support that coagulation of proteins would occur during incubation is provided by the instant specification. P. 19, Example 6 shows that pea protein incubated with phytase resulted in increased gelling compared to a solution incubated without phytase.
Bjarnason does not teach adding phytase in an amount of at least 15 FTU per gram of plant protein or heating the coagulated plant protein solution to at least 90[Symbol font/0xB0]C to inactivate the phytase.
Regarding adding phytase in an amount of at least 15 FTU per gram of plant protein, Streekstra teaches of a soymilk comprising phytase, where the soymilk at the end comprises from 500 to 20,000 FTU/kg soymilk ([0054]). Because soymilk is known in the art to comprise 3.27 g protein per 100 g soymilk, the soymilk of Streekstra comprises 15 to 612 FTU phytase/ g soybean protein, which falls within the claimed range of “at least 15 FTU per gram protein”.
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Evidence to support that soymilk comprises 3.27 g of protein per 100 g soymilk is provided by USDA (p. 1, Table, row 4).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the process of Bjarnason with the addition of higher levels of phytase as taught by Streekstra. Applying a known technique to a known device (method or product) ready for improvement to yield predictable results is likely to be obvious, see MPEP §2143(D).
Regarding heating the coagulated plant protein solution to at least 90[Symbol font/0xB0]C to inactivate the phytase, Yura teaches treated a soy milk (i.e., a plant protein mixture) with enzymes such as phytase ([0004]) and inactivating the enzymes at a temperature of 110 to 150[Symbol font/0xB0] C ([0019]), which falls within the claimed range of “at least 90[Symbol font/0xB0]C”.
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the process of Bjarnason with the higher enzyme inactivation temperature taught by Yura. Applying a known technique to a known device (method or product) ready for improvement to yield predictable results is likely to be obvious, see MPEP §2143(D).
Regarding claim 12, Bjarnason teaches all elements of claim 10 as described above. Bjarnason also teaches separation of the solution from the solid material (col. 5, lines 28-33).
Regarding claim 13, Bjarnason teaches all elements of claim 10 as described above. Bjarnason also teaches wherein the plant protein can be pea protein (col. 7, lines 21-25).
Regarding claim 21, Bjarnason also teaches that the protein of the invention may be pea protein (col. 7, l. 16-24) and that the slurry preferably comprises 10-100% wt of the protein containing material (col. 4, l. 52-55), which falls within the claimed range of “at least 2.5% (w/w)”. Bjarnason also teaches that the slurry is incubated for preferably 1 to 6 hours (which falls within the claimed range of “at least 1 hour”) at a temperature of 0 to 60[Symbol font/0xB0]C (which encompasses the claimed range of “30[Symbol font/0xB0]C to 50[Symbol font/0xB0]C”)(col. 4, l. 66- col. 5, l. 5).
With respect to the overlapping ranges, MPEP §2144.05 teaches that it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness.
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Yura in view of Streekstra as evidenced by USDA and Rynk as applied to claim 1 above, and further in view of Hill.
Regarding claim 11, Yura does not teach wherein the food product is a plant protein-based cheese and wherein said improved property is increased cheese texture.
However, in the same field of endeavor, Hill teaches that as a result of the growing popularity of vegan and other dairy-free diets, numerous dairy free cheese substitutes are now available (p. 1, ¶ 2) and that dairy free cheese is most commonly made with soy (i.e., a plant protein; p. 2, ¶ 4). Hill also teaches that many ingredients are added to help mimic the texture and taste of real cheese (p. 2, ¶ 5).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to use the process taught by Yura to make a dairy free cheese product as taught by Hill. One would be motivated to make cheese from the product of Yura because of the popularity of dairy free cheeses that has risen.
Response to Arguments
Claim Rejections – 35 U.S.C. §102 of claims 10, 12, and 13 over Bjarnason: Applicant' s arguments have been fully considered and are persuasive to the extent that the claims as presently amended would not be anticipated/obvious in view of Bjarnason. However, upon further consideration, a new ground(s) of rejection is made in view of Bjarnason, Streekstra, and Yura.
Applicant’s arguments regarding the new limitations (Remarks, p. 7, ¶ 3; p. 8, ¶ 2-3) are persuasive to the extent that Bjarnason does not teach the amount of phytase to include in the composition or inactivating the phytase at a temperature of at least 90[Symbol font/0xB0]C. However, a new ground(s) of rejection is made in view of Bjarnason, Streekstra, and Yura.
Applicant argued that Bjarnason teaches hydrolysis, not coagulation (Remarks, p. 7, ¶ 4- p. 8, ¶ 1).
This argument has been considered but is not persuasive. MPEP §2112.01 states where the claimed and prior art 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). Because the process of Bjarnason in view of Streekstra and Yura is the same as that of the claimed invention, a prima facie case of obviousness has been established.
Applicant also argued that the inherency argument is improper because the instant specification is used (Remarks, p. 8, ¶ 2- p. 9, ¶ 1).
This argument has been considered but is not persuasive. MPEP §2112.01 states where the claimed and prior art 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). Because the process of Bjarnason in view of Streekstra and Yura is the same as that of the claimed invention, a prima facie case of obviousness has been established.
Additionally, MPEP §2112(V) states “Once a reference teaching product appearing to be substantially identical is made the basis of a rejection, and the Examiner presents evidence of reasoning to show inherency, the burden of production shifts to the Applicant. [T]he PTO can require an applicant to prove that the prior art products do not necessarily or inherently possess the characteristics of his [or her] claimed product. Whether the rejection is based on ‘inherency’ under 35 U.S.C. 102, on ‘prima facie obviousness’ under 35 U.S.C. 103, jointly or alternatively, the burden of proof is the same.” In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433-34 (CCPA 1977) (footnote and citation omitted). In the present case, the Applicant has not provided sufficient data to demonstrate that the process of Bjarnason would produce a patentably distinct product.
Claim Rejections – 35 U.S.C. §103 of claims 1-5, 8, 14, 15, and 20-22 over Yura and Streekstra: Applicant’s arguments filed June 23, 2026 have been fully considered but they are not persuasive.
Applicant argued that Rynk disproves coagulation of soymilk rather than providing evidence, and that the phytase treated soymilk in Yura remains a liquid (Remarks, p. 11, ¶ 2- p.12, ¶ 1).
This argument has been considered but is not persuasive. Ryke discloses that only the addition of more than 1 g of phytase per 100 mL of soymilk led to the observation of increasing viscosity but not the coagulation (p. 3, ¶ 2). Streekstra discloses that the commercial phytase used is in concentrations of 5,000 to 10,000 FTU/g phytase. Thus, 1 g of phytase per 100 mL of soymilk equates to 1529 to 3058 FTU of phytase per g of protein, which is well above the 15 to 612 FTU phytase/ g soybean protein disclosed by Streekstra.
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100
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3.27
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3058
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As such, the disclosure of Ryke shows that phytase inclusion under 1 g of phytase per 100 mL of soymilk would then result in at least some coagulation of the soymilk product. With respect to the argument that the phytase treated soymilk in Yura remains a liquid, Yura does not explicitly state that there was no coagulation that occurred during the treatment of soymilk. Because the phytase concentration of Yura in view of Streekstra is lower than the minimum amount of phytase to prevent coagulation as disclosed by Ryke, one of ordinary skill would recognize that Yura modified with the amount of phytase as taught by Streekstra would necessarily have some degree coagulation occur during the phytase treatment.
Applicant also argued that Yura teaches away from protein modification with phytase because Yura states that the phytic acid decomposing enzyme should have no or low protease activity. Applicant then alleges that Yura designed the phytase treatment step specifically to avoid affecting protein physical properties (Remark, p. 12, ¶ 2- p. 13, ¶ 1).
This argument has been considered but is not persuasive. MPEP §2123(I) states “The court held that the prior art anticipated the claims even though it taught away from the claimed invention. ‘The fact that a modem with a single carrier data signal is shown to be less than optimal does not vitiate the fact that it is disclosed.’” Celeritas Technologies Ltd. v. Rockwell International Corp., 150 F.3d 1354, 1361, 47 USPQ2d 1516, 1522-23 (Fed. Cir. 1998). Although Yura states that a no or low protease activity enzyme is desirable (i.e., preferable), Yura discloses that high protease phytase impacts the gel formation of proteins. Thus, Yura is sufficient to teach the claimed invention.
Applicant further argued that Streekstra serves a different purpose and context and one of ordinary skill would not have been motivated to combine Yura and Streekstra, and that such a modification would not suggest coagulation of protein (Remarks, p. 13, ¶ 2- p. 14, ¶ 1).
This argument has been considered but is not persuasive. The Examiner maintains that one of ordinary skill would have been motivated to make this modification because Streekstra teaches that soymilk comprises high amounts of phytate, and that adding a sufficient amount of phytase reduces the phytate content ([0055]), and that phytate is known to exert a strong negative effect on the absorption of cations, which are minerals ([0004]). Additionally, as described above, the Examiner maintains that the coagulation of protein would be an inherent result of methods as claimed.
Ryke discloses that only the addition of more than 1 g of phytase per 100 mL of soymilk led to the observation of increasing viscosity but not the coagulation (p. 3, ¶ 2). Streekstra discloses that the commercial phytase used is in concentrations of 5,000 to 10,000 FTU/g phytase. Thus, 1 g of phytase per 100 mL of soymilk equates to 1529 to 3058 FTU of phytase per g of protein, which is well above the 15 to 612 FTU phytase/ g soybean protein disclosed by Streekstra.
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3.27
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=
1529
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10,000
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1
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1
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100
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100
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3.27
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3058
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As such, the disclosure of Ryke shows that phytase inclusion under 1 g of phytase per 100 mL of soymilk would then result in at least some coagulation of the soymilk product.
Applicant further argued that the accepted wisdom in the art at the time of the invention was that phytase is used solely for phytic acid removal and mineral bioavailability (Remarks, p. 14, ¶ 2).
This argument has been considered but is not persuasive. MPEP §2112(II) states “There is no requirement that a person of ordinary skill in the art would have recognized the inherent disclosure at the relevant time, but only that the subject matter is in fact inherent in the prior art reference. Schering Corp. v. Geneva Pharm. Inc., 339 F.3d 1373, 1377, 67 USPQ2d 1664, 1668 (Fed. Cir. 2003) (rejecting the contention that inherent anticipation requires recognition by a person of ordinary skill in the art before the critical date and allowing expert testimony with respect to post-critical date clinical trials to show inherency)”. Because coagulation of protein is an inherent result of performing the method as claimed, it is not necessary that said property was discussed at the effective filing date of the claimed invention. MPEP §2112(V) states “"[T]he PTO can require an applicant to prove that the prior art products do not necessarily or inherently possess the characteristics of his [or her] claimed product. Whether the rejection is based on ‘inherency’ under 35 U.S.C. 102, on ‘prima facie obviousness’ under 35 U.S.C. 103, jointly or alternatively, the burden of proof is the same." In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433-34 (CCPA 1977) (footnote and citation omitted).
Applicant also argued that there is no motivation to combine reference for coagulation (p. 14, ¶ 3- p. 15, ¶ 1).
This argument has been considered but is not persuasive. MPEP §2112(II) states “There is no requirement that a person of ordinary skill in the art would have recognized the inherent disclosure at the relevant time, but only that the subject matter is in fact inherent in the prior art reference. Schering Corp. v. Geneva Pharm. Inc., 339 F.3d 1373, 1377, 67 USPQ2d 1664, 1668 (Fed. Cir. 2003) (rejecting the contention that inherent anticipation requires recognition by a person of ordinary skill in the art before the critical date and allowing expert testimony with respect to post-critical date clinical trials to show inherency)”. Because coagulation of protein is an inherent result of performing the method as claimed, it is not necessary that said property was discussed at the effective filing date of the claimed invention. MPEP §2112(V) states “"[T]he PTO can require an applicant to prove that the prior art products do not necessarily or inherently possess the characteristics of his [or her] claimed product. Whether the rejection is based on ‘inherency’ under 35 U.S.C. 102, on ‘prima facie obviousness’ under 35 U.S.C. 103, jointly or alternatively, the burden of proof is the same." In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433-34 (CCPA 1977) (footnote and citation omitted).
Applicant also argued that adding Streekstra’s higher phytase levels to Yura’s process would produce results contrary to Yura’s explicit design intent of making a smooth soymilk product (Remarks, p. 15, ¶ 2- p. 16, ¶ 1).
This argument has been considered but is not persuasive. Yura teaches that soymilk has high amounts of phytic acid, and that a high phytate diet inhibits intestinal absorption of mineral, and that phytase can be used to produce a low phytin milk ([0004]). Streekstra discloses that the amount of phytase to be used is calculated to remove the majority of the phytate ([0014]). Thus, one of ordinary skill would have applied the amount of phytase used in Streekstra to the soymilk of Yura to eliminate the phytate. The Examiner maintains that, as described above, the disclosure of Ryke shows that phytase inclusion under 1 g of phytase per 100 mL of soymilk would then result in at least some coagulation of the soymilk product. Although the product of Yura does not result in a completely coagulated product, the method of claim 1 does not require that all of the protein present be coagulated. Claim 1 merely requires the solution be incubated and that the incubation results in coagulation.
Applicant further argued that the Applicant’s discovery of phytase-induced coagulations in unexpected and that these results are corroborated by Ryke (Remarks, p. 16, ¶ 2).
The data provided by the instant specification is not commensurate in scope with the claimed invention. MPEP §716.02(d) states that “Whether the unexpected results are the result of unexpectedly improved results or a property not taught by the prior art, the "objective evidence of nonobviousness must be commensurate in scope with the claims which the evidence is offered to support." In other words, the showing of unexpected results must be reviewed to see if the results occur over the entire claimed range. In re Clemens, 622 F.2d 1029, 1036, 206 USPQ 289, 296 (CCPA 1980)” and “To establish unexpected results over a claimed range, applicants should compare a sufficient number of tests both inside and outside the claimed range to show the criticality of the claimed range. In re Hill, 284 F.2d 955, 128 USPQ 197 (CCPA 1960).” The Applicant relies upon Example 6 of the specification to demonstrate unexpected results. However, Example 6 only contains data for a 4% pea protein solution at a pH of 6.7 and 20 FTU/g for 2 hours at 40[Symbol font/0xB0]C. However, the claimed method does not recite the specific protein, the amount of protein, the pH of the solution, or the incubation time and temperature, which are all known to have an impact on the effects of the claimed invention. Thus, the data provided by the instant specification is not commensurate in scope with the claimed invention.
Additionally, Ryke discloses that only the addition of more than 1 g of phytase per 100 mL of soymilk led to the observation of increasing viscosity but not the coagulation (p. 3, ¶ 2). Streekstra discloses that the commercial phytase used is in concentrations of 5,000 to 10,000 FTU/g phytase. Thus, 1 g of phytase per 100 mL of soymilk equates to 1529 to 3058 FTU of phytase per g of protein, which is well above the 15 to 612 FTU phytase/ g soybean protein disclosed by Streekstra.
5000
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10,000
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3.27
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As such, the disclosure of Ryke shows that phytase inclusion under 1 g of phytase per 100 mL of soymilk would then result in at least some coagulation of the soymilk product.
Applicant argued that claim 22 has been amended to overcome the objection to the preamble (Remarks, p. 17, ¶ 1).
Although the recitation has been amended to be moved from the preamble of the claim to the body of the claim, the Examiner maintains that it is still the intended use of the claimed method. Absent evidence to the contrary, the recitation does not result in a manipulative different to the method steps recited in the body of the claim. As such, the recitation does not carry patentable weight.
Applicant further argued that claims 20 and 21 have been amended to overcome the prior art (Remarks, p. 17, ¶ 2).
However, Yura teaches that soymilk treated with enzyme is heat-treated to inactivate the enzyme at a temperature of 110 to 150[Symbol font/0xB0]C ([0019]), which falls within the claimed range of “at least 90[Symbol font/0xB0]C” as required by claim 20. Additionally, Bjarnason also teaches that the slurry is incubated for preferably 1 to 6 hours (which falls within the claimed range of “at least 1 hour”) at a temperature of 0 to 60[Symbol font/0xB0]C (which encompasses the claimed range of “30[Symbol font/0xB0]C to 50[Symbol font/0xB0]C”)(col. 4, l. 66- col. 5, l. 5). Thus, the cited prior does disclose the newly amended limitations of claims 20 and 21.
Claim Rejections – 35 U.S.C. §103 of claims 6, 16, and 17 over Yura, Streekstra, and Bjarnason; claim 7 over Yura, Streekstra, and Barreca; claim 9 over Yura, Streekstra, and Nesterenko; and claim 11 over Yura, Streekstra, and Hill: Applicant’s arguments filed June 23, 2026 have been fully considered but they are not persuasive.
Applicant's arguments as related to claim 1 were determined to be unpersuasive as detailed previously herein. Examiner further maintains that the dependent claims are properly rejected in light of the cited combinations of prior art as described in the claim rejections.
Applicant argued that Hill confirms that dairy-free cheese product requires additional coagulants and texture agents (Remarks, p. 18, ¶ 6).
This argument has been considered but is not persuasive. Claim 11 and claim 10, upon which claim 11 depends, uses the transition phrase “comprising”. MPEP §2111.03(I) states “The transitional term "comprising", which is synonymous with "including," "containing," or "characterized by," is inclusive or open-ended and does not exclude additional, unrecited elements or method steps.” Although Hill discloses the use of additional coagulants or texture agents to produce cheese, the claims do not preclude the addition of other additives to produce a plant protein-based cheese.
The rejections of claims 1-17 and 20-22 have been maintained herein.
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.
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/A.S.H./Examiner, Art Unit 1793
/Michele L Jacobson/Primary Examiner, Art Unit 1793
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