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 .9
The amendment filed December 18, 2025 is acknowledged. Claims 1 and 5-10 are pending in the application. Claims 2-4 have been cancelled.
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 December 18, 2025 has been entered.
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.
Claims 1 and 5-10 are rejected under 35 U.S.C. 103 as being unpatentable over Tsumura et al. US 3857970 (hereinafter “Tsumura”) in view of Brown et al. US 20180327792 (hereinafter “Brown”).
With respect to claim 1, Tsumura teaches a method for preparing cheese-like foodstuff (C1, L4-5).
Regarding the recitation of “for producing a plant-based cheese-substitute food product” in the preamble of claim 1, it is noted that this recitation is a statement of intended use or field of use. If the body of a claim fully and intrinsically sets forth all of the limitations of the claimed invention, and the preamble merely states the purpose or intended use of the invention, then the preamble is not considered a limitation and is of no significance to the claim construction. See MPEP 2111.02.
Regarding the recitation of the method comprising applying a nuclease to a raw material containing a plant protein, and performing a hydrolysis reaction of the raw material with the nuclease at a temperature of 35⁰C to 75⁰C , wherein the nuclease is 5’-phosphodiesterase in claim 1, Tsumura teaches adding an enzyme, such as Amano G (5’-phosphodiesterase), to soy milk (C4, 37-40 and 47-53). As disclosed at paragraph [0028] of the instant specification, “Amano G” is a 5’-phosphodiesterase.
However, Tsumura does not expressly disclose the claimed temperature range.
Brown teaches producing a food product by hydrolyzing plant-origin material with an enzyme. The plant-origin material may be from a legume, and the hydrolyzing step may be performed at a temperature of about 48⁰C to about 100⁰C. “About” includes a specific value, plus or minus 30% of the specified value (i.e., a temperature of about 48⁰C to about 100⁰C is interpreted to include a temperature of 33.6⁰C to 130⁰C) (Abstract; paragraphs [0002], [0018], [0020], [0021], [0027], [0030], and [0372]).
It would have been obvious to one of ordinary skill in the art before effective filing date of the claimed invention to select any portions of the disclosed range, including the instantly claimed temperature range, from the range disclosed in the prior art with the expectation of successfully preparing a cheese substitute product. One of ordinary skill in the art would have been motivated to do so because Tsumura and Brown similarly teach preparing food products with leguminous material and enzyme, and Brown teaches the hydrolyzing step provides a product with enhanced organoleptic properties such as reduced viscosity, reduced sliminess, and/or desired taste (Abstract; and paragraph [0002]). There would have been a reasonable expectation of success. "The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set percentage ranges is the optimum combination of percentages " In re Peterson 65 USPQ2d 1379 (CAFC 2003). Also In re Malagari, 182 USPQ 549,533 (CCPA 1974) and MPEP 2144.05.
Regarding the recitation of performing lactic acid fermentation on the raw material to reach a pH of 3.5 to 5.7 at a temperature of 15 to 45⁰C in claim 1, Tsumura teaches after adding the enzyme to the soymilk, inoculating the soymilk with lactic acid-forming bacteria to ferment at a temperature of e.g., about 50⁰C until the acidity of the milk is increased to about 0.20 (C4, L17, 24-30,37-40, and 66-67; and C6, L3-6).
However, Tsumura does not expressly disclose reaching a pH of 3.5 to 5.7 at a temperature of 15⁰C to 45⁰C.
Brown teaches producing a food product by fermenting the hydrolyzed plant-origin material. Fermentation can be performed on the hydrolyzed plant-origin material with lactic acid bacteria at a temperature of 25-45⁰C to a pH of below 4.5 and an acidity of about 0.3 to about 0.4 wt. %. “About” includes a specific value, plus or minus 30% of the specified value (i.e., an acidity of about 0.3 to about 0.4 wt.% is interpreted to include an acidity of 0.21 to 0.52 wt.%) (Abstract; and paragraphs [0002], [0019]-[0021], [0041], [0042], [0154], and [0372]).
It would have been obvious to one of ordinary skill in the art before effective filing date of the claimed invention to select any portions of the disclosed ranges, including the instantly claimed temperature range and pH, from the ranges disclosed in the prior art with the expectation of successfully preparing a cheese substitute product. One of ordinary skill in the art would have been motivated to do so because Tsumura and Brown similarly teach preparing food products comprising similar acidity with leguminous material, enzyme, and lactic acid bacteria, and Brown teaches the fermentation step provides a product with enhanced organoleptic properties such as reduced viscosity, reduced sliminess, and/or desired taste as well as those associated with fermentation (e.g., taste, texture, smell, color) (Abstract; and paragraphs [0002] and [0020]). There would have been a reasonable expectation of success. "The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set percentage ranges is the optimum combination of percentages " In re Peterson 65 USPQ2d 1379 (CAFC 2003). Also In re Malagari, 182 USPQ 549,533 (CCPA 1974) and MPEP 2144.05.
Regarding the recitation of wherein animal-derived raw material accounts for less than 50 wt% in all the raw material of the plant-based cheese substitute food product in claim 1, Tsumura teaches adding fat to the soymilk to obtain an emulsion used to produce the cheese-like foodstuff, the fat is added in an amount of about 2 to about 6 weight percent based on the weight of the emulsion, and the fat may be derived from animal fats and/or vegetable fats (C1, L63-C2, L1; C2, L42-48; and C3, L59-62). Thus, Tsumura teaches an amount of animal-derived raw material of 0 to about 6 weight percent and falls within the claimed range.
With respect to claim 5, modified Tsumura is relied upon for the teaching of the method of claim 1 as addressed above.
Regarding the recitation of “for producing a plant-based cheese-substitute food product” in the preamble of claim 5, it is noted that this recitation is a statement of intended use or field of use. If the body of a claim fully and intrinsically sets forth all of the limitations of the claimed invention, and the preamble merely states the purpose or intended use of the invention, then the preamble is not considered a limitation and is of no significance to the claim construction. See MPEP 2111.02.
Regarding the recitation of wherein the raw material containing a plant protein is derived from a legume in claim 5, modified Tsumura teaches this limitation since Tsumura teaches soy milk, which contains soy protein, is used in the method (C1, L4-5; and C2, L19-22).
With respect to claim 6, modified Tsumura is relied upon for the teaching of the method of claim 1 as addressed above.
Regarding the recitation of “for producing a plant-based cheese-substitute food product” in the preamble of claim 6, it is noted that this recitation is a statement of intended use or field of use. If the body of a claim fully and intrinsically sets forth all of the limitations of the claimed invention, and the preamble merely states the purpose or intended use of the invention, then the preamble is not considered a limitation and is of no significance to the claim construction. See MPEP 2111.02.
Regarding the recitation of wherein the raw material containing a plant protein is derived from a seed in claim 6, Tsumura does not expressly disclose this limitation.
Brown teaches producing a food product by hydrolyzing plant-origin material with an enzyme and fermenting the hydrolyzed plant-origin material. The plant-origin material may be from legume(s) and grain(s) (seeds) (Abstract; paragraphs [0002], [0018]-[0021], and [0027]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, given the teachings of Brown, to select seed(s) in the method of Tsumura based in its suitability for its intended purpose with the expectation of successfully preparing a desirable cheese replica product. One of ordinary skill in the art would have been motivated to do so because Tsumura and Brown similarly teach preparing food products with leguminous material, enzyme, and lactic acid-forming bacteria, Brown teaches certain health benefits and nutrients are obtained from the plant-origin material such as grain(s) (seeds) (Abstract; and paragraphs [0002] and [0027]), Tsumura teaches other additives can be used if desired (C4, L7-9), and said combination would amount to the use of a known element for its intended use in a known environment to accomplish entirely expected results. There would have been a reasonable expectation of success with said modification. As stated in MPEP 2144.06 ““It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art.” In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980) (citations omitted) (Claims to a process of preparing a spray-dried detergent by mixing together two conventional spray-dried detergents were held to be prima facie obvious.)”
With respect to claim 7, modified Tsumura is relied upon for the teaching of the method of claim 1 as addressed above.
Regarding the recitation of “for producing a plant-based cheese-substitute food product” in the preamble of claim 7, it is noted that this recitation is a statement of intended use or field of use. If the body of a claim fully and intrinsically sets forth all of the limitations of the claimed invention, and the preamble merely states the purpose or intended use of the invention, then the preamble is not considered a limitation and is of no significance to the claim construction. See MPEP 2111.02.
Regarding the recitation of wherein the raw material containing a plant protein is derived from a cereal in claim 7, Tsumura does not expressly disclose this limitation.
Brown teaches producing a food product by hydrolyzing plant-origin material with an enzyme and fermenting the hydrolyzed plant-origin material. The plant-origin material may be from legume(s) and cereal grain(s) (Abstract; paragraphs [0002], [0018]-[0021], and [0027]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, given the teachings of Brown, to select cereal(s) in the method of Tsumura based in its suitability for its intended purpose with the expectation of successfully preparing a desirable cheese replica product. One of ordinary skill in the art would have been motivated to do so because Tsumura and Brown similarly teach preparing food products with leguminous material, enzyme, and lactic acid-forming bacteria, Brown teaches certain health benefits and nutrients are obtained from the plant-origin material such as cereal grain(s), Tsumura teaches other additives can be used if desired (C4, L7-9), and said combination would amount to the use of a known element for its intended use in a known environment to accomplish entirely expected results. There would have been a reasonable expectation of success with said modification. As stated in MPEP 2144.06 ““It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art.” In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980) (citations omitted) (Claims to a process of preparing a spray-dried detergent by mixing together two conventional spray-dried detergents were held to be prima facie obvious.)”
With respect to claim 8, modified Tsumura is relied upon for the teaching of the method of claim 1 as addressed above.
Regarding the recitation of “for producing a plant-based cheese-substitute food product” in the preamble of claim 8, it is noted that this recitation is a statement of intended use or field of use. If the body of a claim fully and intrinsically sets forth all of the limitations of the claimed invention, and the preamble merely states the purpose or intended use of the invention, then the preamble is not considered a limitation and is of no significance to the claim construction. See MPEP 2111.02.
Regarding the recitation of wherein an oil or fat is added to the raw material before the lactic acid fermentation or after the lactic acid fermentation in claim 8, modified Tsumura teaches this limitation since Tsumura teaches fat and/or oil is added to the soy milk, and the soymilk is inoculated with lactic acid-forming bacteria after the addition of the enzyme thereto (C2, L42-44; C3, L3-9 and 59-60; and C4, L24-25 and 37-40).
With respect to claim 9, modified Tsumura is relied upon for the teaching of the method of claim 8 as addressed above.
Regarding the recitation of “for producing a plant-based cheese-substitute food product” in the preamble of claim 9, it is noted that this recitation is a statement of intended use or field of use. If the body of a claim fully and intrinsically sets forth all of the limitations of the claimed invention, and the preamble merely states the purpose or intended use of the invention, then the preamble is not considered a limitation and is of no significance to the claim construction. See MPEP 2111.02.
Regarding the recitation of wherein a thickener is added to the raw material before the lactic acid fermentation or after the lactic acid fermentation in claim 9, Tsumura does not expressly disclose adding a thickener to the soymilk.
Brown teaches producing a food product by hydrolyzing plant-origin material with an enzyme and fermenting the hydrolyzed plant-origin material. Additives such as starch, cellulose, pectin, and pomace, may be added prior to or after lactic acid fermentation (Abstract; paragraphs [0002], [0018]-[0022], [0027], [0029], [0036]-[0040], [0059], and [0257]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, given the teachings of Brown, to select starch, cellulose, pectin, or pomace in the method of Tsumura based in its suitability for its intended purpose with the expectation of successfully preparing an organoleptically desirable cheese replica product. One of ordinary skill in the art would have been motivated to do so because Tsumura and Brown similarly teach preparing food products with leguminous material, enzyme, and lactic acid-forming bacteria, Brown teaches the additives provide the product with desired organoleptic properties, processability, or health benefits (paragraphs [0019] and [0022]), Tsumura teaches other additives can be used if desired (C4, L7-9), and said combination would amount to the use of a known element for its intended use in a known environment to accomplish entirely expected results. There would have been a reasonable expectation of success with said modification. The selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination. (“Reading a list and selecting a known compound to meet known requirements is no more ingenious than selecting the last piece to put in the last opening in a jig-saw puzzle.” Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) See also In re Leshin, 227 F.2d 197, 125 USPQ 416 (CCPA 1960) (selection of a known plastic to make a container of a type made of plastics prior to the invention was held to be obvious)) (MPEP 2144.07).
With respect to claim 10, Tsumura teaches a method for preparing cheese-like foodstuff (C1, L4-5).
Regarding the recitation of “for producing a plant-based cheese-substitute food product” in the preamble of claim 10, it is noted that this recitation is a statement of intended use or field of use. If the body of a claim fully and intrinsically sets forth all of the limitations of the claimed invention, and the preamble merely states the purpose or intended use of the invention, then the preamble is not considered a limitation and is of no significance to the claim construction. See MPEP 2111.02.
Regarding the recitation of the method comprising applying a nuclease to a raw material containing a plant protein, and performing a hydrolysis reaction of the raw material with the nuclease at a temperature of 35⁰C to 75⁰C , wherein the nuclease is 5’-phosphodiesterase in claim 10, Tsumura teaches adding an enzyme, such as Amano G (5’-phosphodiesterase), to soy milk (C4, 37-40 and 47-53). As disclosed at paragraph [0028] of the instant specification, “Amano G” is a 5’-phosphodiesterase.
However, Tsumura does not expressly disclose the claimed temperature range.
Brown teaches producing a food product by hydrolyzing plant-origin material with an enzyme. The plant-origin material may be from a legume, and the hydrolyzing step may be performed at a temperature of about 48⁰C to about 100⁰C. “About” includes a specific value, plus or minus 30% of the specified value (i.e., a temperature of about 48⁰C to about 100⁰C is interpreted to include a temperature of 33.6⁰C to 130⁰C) (Abstract; paragraphs [0002], [0018], [0020], [0021], [0027], [0030], and [0372]).
It would have been obvious to one of ordinary skill in the art before effective filing date of the claimed invention to select any portions of the disclosed range, including the instantly claimed temperature range, from the range disclosed in the prior art with the expectation of successfully preparing a cheese substitute product. One of ordinary skill in the art would have been motivated to do so because Tsumura and Brown similarly teach preparing food products with leguminous material and enzyme, and Brown teaches the hydrolyzing step provides a product with enhanced organoleptic properties such as reduced viscosity, reduced sliminess, and/or desired taste (Abstract; and paragraph [0002]). There would have been a reasonable expectation of success. "The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set percentage ranges is the optimum combination of percentages " In re Peterson 65 USPQ2d 1379 (CAFC 2003). Also In re Malagari, 182 USPQ 549,533 (CCPA 1974) and MPEP 2144.05.
Regarding the recitation of performing lactic acid fermentation on the raw material to reach a pH of 3.5 to 5.7 at a temperature of 15 to 45⁰C to produce a lactic acid-fermented product in claim 10, Tsumura teaches after adding the enzyme to the soymilk, inoculating the soymilk with lactic acid-forming bacteria to ferment at a temperature of e.g., about 50⁰C until the acidity of the milk is increased to about 0.20 (C4, L17, 24-30, 37-40, and 66-67; and C6, L3-6).
However, Tsumura does not expressly disclose reaching a pH of 3.5 to 5.7 at a temperature of 15⁰C to 45⁰C.
Brown teaches producing a food product by fermenting the hydrolyzed plant-origin material. Fermentation can be performed on the hydrolyzed plant-origin material with lactic acid bacteria at a temperature of 25-45⁰C to a pH of below 4.5 and an acidity of about 0.3 to about 0.4 wt. %. “About” includes a specific value, plus or minus 30% of the specified value (i.e., an acidity of about 0.3 to about 0.4 wt.% is interpreted to include an acidity of 0.21 to 0.52 wt.%) (Abstract; and paragraphs [0002], [0019]-[0021], [0041], [0042], [0154], and [0372]).
It would have been obvious to one of ordinary skill in the art before effective filing date of the claimed invention to select any portions of the disclosed ranges, including the instantly claimed temperature range and pH, from the ranges disclosed in the prior art with the expectation of successfully preparing a cheese substitute product. One of ordinary skill in the art would have been motivated to do so because Tsumura and Brown similarly teach preparing food products comprising similar acidity with leguminous material, enzyme, and lactic acid bacteria, and Brown teaches the fermentation step provides a product with enhanced organoleptic properties such as reduced viscosity, reduced sliminess, and/or desired taste as well as those associated with fermentation (e.g., taste, texture, smell, color) (Abstract; and paragraphs [0002] and [0020]). There would have been a reasonable expectation of success. "The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set percentage ranges is the optimum combination of percentages " In re Peterson 65 USPQ2d 1379 (CAFC 2003). Also In re Malagari, 182 USPQ 549,533 (CCPA 1974) and MPEP 2144.05.
Regarding the recitation of wherein animal-derived raw material accounts for less than 50 wt% in all the raw material of the plant-based cheese substitute food product in claim 10, Tsumura teaches adding fat to the soymilk to obtain an emulsion used to produce the cheese-like foodstuff, the fat is added in an amount of about 2 to about 6 weight percent based on the weight of the emulsion, and the fat may be derived from animal fats and/or vegetable fats (C1, L63-C2, L1; C2, L42-48; and C3, L59-62). Thus, Tsumura teaches an amount of animal-derived raw material of 0 to about 6 weight percent and falls within the claimed range.
Regarding the recitation of after performing lactic acid fermentation, adding oil or fat and a thickener to the lactic-acid fermented product and performing pre-emulsification, and performing sterilization at a temperature of 80⁰C to 90⁰C in claim 10, Tsumura teaches fat and/or oil is added to the soy milk prior to inoculating the soy milk with lactic acid-forming bacteria, homogenizing the emulsion, and heating the preparation to a temperature of about 90⁰C (C2, L42-44; C3, L3-9 and 59-60; and C4, L14-15, 17, 24-25, and 37-40).
While Tsumura does not expressly disclose adding oil or fat after performing lactic acid fermentation, it is noted that Tsumura teaches preparing a cheese-like product that is substantially similar to the claimed cheese substitute, and the point in which the oil/fat is added during the method is not seen as critical. Therefore, it would have been obvious to one of ordinary skill in the art to add the fat and/or oil after performing lactic acid fermentation in the method of modified Tsumura with the expectation of successfully preparing a cheese-like product. There would have been a reasonable expectation of success. To switch the order of performing process steps, i.e. the order of the addition of the ingredients into the final mixture, would be obvious absent any clear and convincing evidence and/or arguments to the contrary (MPEP 2144.04 [R-1]). “Selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results.”
Tsumura does not expressly disclose adding a thickener to the soymilk.
Brown teaches producing a food product by hydrolyzing plant-origin material with an enzyme and fermenting the hydrolyzed plant-origin material. Additives such as starch, cellulose, pectin, and pomace, may be added after lactic acid fermentation (Abstract; paragraphs [0002], [0018]-[0022], [0027], [0029], [0036]-[0040], [0059], and [0257]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, given the teachings of Brown, to select starch, cellulose, pectin, or pomace in the method of Tsumura based in its suitability for its intended purpose with the expectation of successfully preparing an organoleptically desirable cheese replica product. One of ordinary skill in the art would have been motivated to do so because Tsumura and Brown similarly teach preparing food products with leguminous material, enzyme, and lactic acid-forming bacteria, Brown teaches the additives provide the product with desired organoleptic properties, processability, or health benefits (paragraph [0019] and [0022]), Tsumura teaches other additives can be used if desired (C4, L7-9), and said combination would amount to the use of a known element for its intended use in a known environment to accomplish entirely expected results. There would have been a reasonable expectation of success with said modification. The selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination. (“Reading a list and selecting a known compound to meet known requirements is no more ingenious than selecting the last piece to put in the last opening in a jig-saw puzzle.” Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) See also In re Leshin, 227 F.2d 197, 125 USPQ 416 (CCPA 1960) (selection of a known plastic to make a container of a type made of plastics prior to the invention was held to be obvious)) (MPEP 2144.07).
Response to Arguments
Applicant’s remarks filed December 18, 2025 are acknowledged.
Due to the amendments to the claims, the 35 USC rejection of claims 1, 3, and 5-9 over Tsumura in view of Brown US 20140217358 in the previous Office Action have been withdrawn. Upon further searching and consideration, a new ground of rejection has been made. As disclosed above, Tsumura in view of Brown US 20180327792 teaches methods that are substantially similar to those as presently claimed. Applicant’s arguments have been considered but are moot as they pertain to the newly added limitations, and Brown US 20180327792 is relied upon for this teachings as addressed above.
Conclusion
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/T.L.M/Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793
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